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Matrix Absence Management is a nationwide company partnering with employers to provide custom management of Disability, Workers' Compensation, Leave of Absence and ADA programs. Matrix-Radar is our channel for sharing our thoughts and research on industry developments, legislative updates, and other topics of interest to partners and friends.

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IMPORTANT NOTICE

Matrix is committed to keeping our clients and readers informed and in compliance. We will provide updates on meaningful changes – and how they may affect employers – as necessary. Please be aware, however, that these postings do not constitute legal advice. As always, you should consult your legal counsel for advice on the correct solution based on the facts of your specific issue or situation.

For more information on how to manage productivity in the face of this and other employee leave and accommodation issues, contact your Matrix Absence Management or Reliance Standard sales representative or account manager, or call 1-800-866-2301.

Happy Birthday! Monday February 5 marks 25 years since the Family and Medical Leave Act was signed into law. I was in private practice when the law passed, and I recall an associate with our law firm presented a summary of the new law. My thought was, “This will never amount to anything.” So much for my predictive talents! Who knew that 25 years later the FMLA would be such a big part of my job every day and such a challenge for employers? The law and regulations have gone through 2 major revisions since enactment, adding things like 26 weeks to care for an ill or injured service member and special rules for flight crews.

If you want to learn more about this milestone event, including a “Thunderclap” scheduled for 1:00 EST on Monday, check out this page on the website for the National Partnership for Women & Families: 25th anniversary of the FMLA activities.

I also want to take this opportunity to say thank you to all of our clients. You put your trust in Matrix to manage FMLA and state leave requests for your employees and we strive to live up to that trust.

Matrix can help!Remember, in addition to our FMLA and state leave of absence services, we also manage ADA accommodation requests, disability claims, workers’ compensation, state paid family leaves, and more. For information contact your account manager or send us an email at ping@matrixcos.com.

Good news for employers: Depending where your employees are located, you might not have to grant reassignment without competition as a reasonable ADA accommodation.

As we administer our ADA management services, we frequently get questions about the employer’s obligation to reassign an employee to a vacant position as an ADA accommodation. Some time ago we addressed reassignment as an accommodation under the ADA. We wrote:

When good faith efforts during the interactive process fail to yield an effective accommodation for the employee’s current position, the ADA requires an employer to consider a possible accommodation that employers frequently overlook or don’t understand well: reassignmentof a disabled employee to a vacant position. This obligation arises when (1) no other reasonable accommodation will enable the employee to perform the essential functions of his current position without imposing an undue hardship on the employer (thus, the moniker “accommodation of last resort”); and (2) the disabled employee is qualified for the vacant position.

In that blog post we explained the EEOC maintains that if a position is open and the disabled employee has the minimal qualifications, he/she gets the job – he/she does not have to compete or be the best qualified candidate for the position.

Things have advanced a bit since that post was written and it is time for an update. The issue is still not nailed down in most jurisdictions – and the EEOC has not wavered in its position – but the 11th Circuit Court of Appeals (covering Alabama, Florida, and Georgia) has held that in certain circumstances, an employee with a disability can be required to compete with other candidates for an open position. Although this decision came out several months ago, continued questions from our clients show that they still grapple with the issue.

The Facts. The employee, Leokadia Bryk, was a nurse in the psychiatric ward at St. Joseph’s Hospital in Florida. Due to a developing back problem, Bryk walked with a cane during her shifts. The hospital determined that use of the cane posed a risk as patients in the psychiatric ward might be able to use the cane as a weapon. Bryk was given 30 days to apply for other positions for which she was qualified. St. Joseph’s usual transfer rules required that an internal candidate could not apply for another position if the employee had not been in her current position for at least 6 months and had no final written warnings in her file. Bryk did not satisfy either of these requirements, but St. Joseph waived these rules to allow Bryk to apply for vacant positions. She applied for 3 positions but was not hired because she was not the best qualified candidate for any of the positions.

The Lesson. St. Joseph’s had a “best-qualified applicant” policy – meaning that they had a business policy and practice of hiring the best-qualified candidate for an open position. Relying on an earlier U.S. Supreme Court opinion, the 11th Circuit recognized that an employee’s proposed accommodation must be “reasonable in the run of cases.” The court then affirmatively stated that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases’” and held that the ADA does not require mandatory reassignment:

As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. . . . [T]he ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position . . . [T]he intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities . . . [It] was never intended to turn nondiscrimination into discrimination against the non-disabled.

Lay of the Land. Other courts have addressed the issue of reassignment as an ADA accommodation. In Huber v. Wal-Mart Stores, Inc. (2007) the 8th Circuit came to the same conclusion as the 11th Circuit. The EEOC cites cases from the 7th, 10th, and D.C. Circuits in support of its position. Various district courts (the federal trial courts under the Circuit courts of appeals) in several states have tackled the issue with varying results.

Pings for Employers.

Employers should not view the St. Joseph’s case as a complete victory. The federal courts of
appeals are still split on employers’ ADA reassignment obligations, and some haven’t addressed
the issue at all. It is important to receive legal guidance on the status of the issue where you
do business; it is likely to vary if you have employees in multiple states. And, if you require a
disabled employee to compete for an open position in any jurisdiction, you still might find
yourself wrangling with the EEOC.

The St. Joseph’s decision rests heavily on the employer’s “best-qualified applicant” policy. Most
employers probably believe they have such a policy but now employers should memorialize
the policy in writing and train hiring managers to ensure it is followed in practice. It might be
possible to make occasional exceptions but be ready to explain those with business reasons
that justify the variation.

Don’t be inflexible when dealing with the ADA. Even with a best-qualified policy and in the
11th Circuit, there still may be fact-specific situations that would make reassignment without
competition a reasonable accommodation.

Take a lesson from the way St. Joseph’s handled this employee. Even though it enforced its
best-qualified policy, it bent other rules in its transfer and hiring policies as accommodations
to Bryk, enabling her to apply for jobs even though she did not satisfy the company’s rules.

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process. We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at ping@matrixcos.com to learn more about these services.

On January 12, 2018, Maryland became the ninth state to require employers to provide paid sick and safe leave to employees (joining Arizona, Connecticut, California, Massachusetts, Oregon, Vermont, Washington DC and Washington State). The Healthy Working Families Act (“HWFA”) has had a tortured legislative history. The bill passed in the Maryland legislative session early 2017 but then was vetoed by the Governor in May 2017. The veto was overridden the Maryland legislature on January 12th.

Here is a summary of the HWFA’s provisions:

Effective Date

February 11, 2018 (30 days after passage)

Covered Employers

Employers with 15 or more employees must provide paid “sick and safe leave” (those with 14 or fewer employees are also required to provide such leave, though it is unpaid).

Eligible Employees- exclusions

The Act provides a number of exclusions to “employees” who are eligible to earn HWFA, including temporary employees (i.e. those employed by a staffing agency), and those who regularly work less than 12 hours per week.

Accrual Rate and Caps

Employees employed as of January 1, 2018 accrue 1 hour of paid sick and safe leave for every 30 hours worked. Employees hired thereafter begin to accrue paid sick and safe leave from and after their date of hire, in accordance with the hours they work.

Employers can cap accrual to 40 hours in a year (any 12-month period as the employer defines it). An employee cannot accrue more than 64 hours of paid leave at any time.

Limits on Employee Use

Accrued paid sick and safe leave cannot be used during the first 106 calendar days for which the employee works for the employer.

Employers can limit employees’ use to a maximum of 64 hours in a year.

Purposes for which HWFA Hours may be Used

For the care or treatment of the employee’s own mental or physical illness, injury or condition.

To obtain preventive medical care for the employee or employee’s “family member.”

To care for a “family member” with a mental or physical illness, injury or condition.

For maternity or paternity leave or

If the employee or employee’s family member is a victim of domestic violence, sexual assault or stalking, leave may be taken:

o Or during the time that the employee has temporarily
relocated as a result of domestic violence, sexual assault
or stalking.

Covered “family members”

Child (biological, adopted, foster or stepchild of the employee, a child for whom the employee has legal or physical custody or guardianship and a child for whom the employee stands in loco parentis).

Parent (biological, adopted, foster or stepparent of the employee or employee’s spouse, the legal guardian of the employee or an individual who acted as a parent or stood in loco parentis to the employee or the employee’s spouse when they were a minor).

Grandparent (biological, adoptive, foster and step)

Grandchild (biological, adoptive, foster and step)

Sibling (biological, adoptive, foster and step)

Employee Notice

Employees must give advance notice of using HWFA hours if the need for such leave is foreseeable. The employer can require 7 days’ advance notice.

If not, the employee still must provide as much notice as is practicable under the circumstances and can require the employee to follow normal notice and reporting procedures for other leaves or time off.

Employer Requirements Notice of Accrual and Balance

Employers are required to provide employees with information on paystubs of the amount of HWFA accrued and statement amounts used. This may be satisfied via electronic means.

Employer Posting Obligations

The Maryland Department of Labor will post a model notice on its website for employers to use to apprise employees of their rights under HWFA. The notice is not yet available.

Employer Record Retention Requirements

Employers are required to retain records of HWFA accrued and used by each employee for at least 3 years.

Payout on Termination of Employment

Employer is not obligated to pay accrued but unused HWFA leave upon termination of employment.

Employer Prohibitions

Employers are prohibited from taking adverse action (demotion or discharge, or threats of either) or retaliating against an employee who has exercised his or her rights under HWFA, or interfering with an employee’s exercise of those rights.

Enforcement

HWFA vests the Commissioner of the Maryland Department of Labor with enforcement authority, including the ability to assess penalties such as payment of the monetary value of any unpaid earned HWFA, as well as an additional amount up to three times that sum and civil penalties of up to $1,000 per violation.

An employee may bring a civil action to enforce an order from the Commissioner if the employer does not comply. The employee has 3 years from the date the order was entered to file suit.

Compromise legislation has also been introduced, aptly named “Paid Leave Compromise Act” (MD H 98/S135), whichmay slightly alter some of the Act’s provisions. The Radar will keep readers apprised!

On Friday, January 5, 2018, the U.S. Department of labor issued a press release announcing that the Final Ruleamending the regulations governing claims handling procedures for ERISA disability claims will go into effect on April 1, 2018, without changes from the original. The Final Rule was originally issued by the DOL on December 16, 2016, with an effective date of January 1, 2018. That effective date was postponed until April 1, 2018, in order to “solicit additional public input and examine regulatory alternatives” to the Final Rule. The DOL accepted comments until December 11, 2017.

The DOL press release states:

The Department announced a 90-day delay of the applicability date of the final rule – from Jan. 1, 2018, through April 1, 2018 – to give stakeholders the opportunity to submit data and information on the costs and benefits of the final rule. . . .

The information provided in the comments did not establish that the final rule imposes unnecessary regulatory burdens or significantly impairs workers’ access to disability insurance benefits.

We wrote in detail about the ERISA changes when the final Rule was first issued and provided suggestions for employer actions. We urge you to read that post here. Below we provide a brief recap of the changes.

Independence and impartiality of claims adjudicators. Claims and appeals must
be decided in a manner designed to ensure independence and impartiality of the
persons involved in making the benefit determination.

A complete discussion of why the plan denied the claim and the standards
applied in reaching the decision.

The basis for disagreeing with the views of health care or vocational
professionals whose opinions were provided by the claimant or obtained at
the behest of the plan.

The basis for disagreeing with a finding of “disability” by the Social Security
Administration (SSA), if applicable.

The specific internal rules, guidelines, protocols, standards or other similar
criteria of the plan relied upon in making the adverse determination or, alternatively,
a statement that such guidelines etc. do not exist.

If the denial is based on a medical necessity or experimental treatment or similar
exclusion or limit, either an explanation of the scientific or clinical judgment for the
determination, or a statement that such explanation will be provided free of charge
upon request.

Claimant’s right to access entire claim file. An initial adverse benefits determination
must contain a statement that the claimant is entitled to receive, upon request and
without charge, the documents relevant to the claim for benefits.

Notice of new or additional evidence or rationales before adjudication. A claimant
must be notified of and provided an opportunity to respond to any new evidence or
rationales developed by the plan during the pendency of the appeal. However, the new
regulations do not extend the time deadlines for the plan’s determination (45 days from
the filing of the appeal, with a possible 45-day extension).

Claimant is deemed to have exhausted administrative remedies if a plan fails to
comply with claims procedure requirements. A claimant can seek court review of a
claim denial based on a failure to exhaust administrative remedies under the plan if
the plan failed to comply with the claims procedure requirements, unless a detailed
exception applies.

Expanded definition of “adverse benefit determination” that triggers
appeals procedures. Under the new rule, rescissions of coverage, including retroactive
terminations due to alleged misrepresentation of fact (e.g., errors in the application
for coverage) must be treated as adverse benefit determinations, thereby triggering
the plan’s appeals procedures. Rescissions for non-payment of premiums are
not covered by this provision.

Notices and denials must be written in a “culturally and linguistically
appropriate” manner. If a disability claimant’s address is in a county where 10
percent or more of the population is literate only in the same non-English language,
benefit denial notices must include a prominent statement in the relevant non-English
language about the availability of language services. Such services must include assistance
with filing claims and appeals in the non-English language. The plan must provide written
notices in the applicable non-English language upon request.

What is Matrix Doing to Comply with the New Regulations?

Not to worry – Matrix’s disability claims handling procedures will embrace the new rules and will
continue to be best in class! We will be ready to administer our clients’ disability plans in compliance
with the new regulations by April 1, 2018. Indeed, we originally marched toward the January 1, 2018,
compliance date.

If you have questions, please contact your account manager or practice leader, or send us an email at ping@matrixcos.com.

One might think that the Trump administration would trumpet (ahem . . . ) the supposed family-friendly and employer-friendly provisions of the new Tax Cuts and Jobs Act. Not so. A little-publicized provision of the new Act establishes a tax credit for employers who provide paid family and/or medical leave to employees within certain parameters. Your guess is as good as mine as to why this provision has flown under the radar. But not under the Matrix Radar!

The tax code provision is based on a bill previously introduced into the House and Senate as the Strong Families Act, which has received strong criticism from pro-family groups. Google it and you can find websites criticizing and supporting the Strong Families Act. Politics aside, let’s take a look at what is now the law. (But please remember, we at Matrix are not tax advisors – consult your own attorneys or tax advisors for specific details!)

You can review the specific provisions of the law at the link above – the “Employer Credit for Paid Family and Medical Leave” starts at page 221 of the bill (page 223 of the PDF).

Summary. The Tax Cuts and Jobs Act (the “Act”) provides employers with a partial tax credit for wage benefits paid to employees during leave taken for reasons covered by the federal Family and Medical Leave Act (“FMLA”). But note this: The credit is in effect only for tax years 2018 and 2019, and then automatically sunsets unless Congress takes further action.

Employee and employer coverage. The tax credit coverage is not limited to employees and employers covered by the FMLA. Benefits paid to full time and part time employees are covered by the tax credit. However, to qualify for the tax credit, payments must be to employees who:

Have been employed by the employer for at least 1 year

The Act does not specify whether that has to be 12 consecutive months of employment
or whether, like FMLA eligibility, the employee only needs to have worked an aggregate
total of 1 year

Make no more than $72,000 per year

Employers may voluntarily provide paid family leave to employees who are not eligible for FMLA leave (called “added employees” in the Act) and receive the tax credit for such payments as long as the employer has a policy that complies with the Act. So, for example, an employer could provide paid leave benefits to an employee who has not worked 1250 hours in the past 12 months, or who has already exhausted their FMLA entitlement, and still get the tax credit. “Added employers” with fewer than 50 employees or those with small worksites not covered by the FMLA can also make paid leave benefits available to employees and use the tax credit.

Policy requirements include a minimum of 2 weeks of paid leave benefit, a provision against interference with the employee’s policy rights to paid leave, and a provision against termination of an employee for complaining about a violation of the policy.

Leave reasons. Leave benefits must be paid for one or more of the leave reasons available under the FMLA – the employee’s own serious health condition, a family member’s serious health condition, birth or placement of and bonding with a new child, military exigencies, and caring for a seriously ill or injured servicemember. An employer’s policy does not need to cover all of the FMLA leave reasons to qualify for the tax credit. For example, an employer may provide paid leave only for bonding with a new child and still qualify for the tax credit if all other conditions are met.

Amount of leave. The employer’s policy must provide at least 2 weeks of paid leave. The maximum amount of paid leave that qualifies for the tax credit is limited to 12 weeks per employee in a 12-month period (the same as FMLA leave rights).

Percentage of pay provided. The employer must provide a paid leave benefit of at least 50% of the employee’s wages (as defined in the tax code – I’m not going there!).

Amount of tax credit. An employer providing paid family and/or medical leave benefits can receive a tax credit ranging from 12.5% to 25% of the amount paid to the employee. The credit starts at 12.5% of benefits paid at the 50% level and caps at a 25% credit for benefits paid at full wage replacement. For every percentage point over 50% of wages that the employer pays in benefits, the tax credit increases by one-quarter of a percent. Examples:

Percentage of Paid Leave Benefit

Percentage Points above 50%

Multiplied by 0.25%

Employer’s tax credit percentage

50%

0

0 x 0.25% = 0

12.5%

70%

20

20 x 0.25% = 5%

Base 12.5% + 5% = 17.5% tax credit

90%

40

40 x 0.25% = 10%

Base 12.5% + 10% = 22.5% tax credit

100%

50

50 x 0.25% = 12.5%

Base 12.5% +12.5% = 25% tax credit

Applicable tax years. The paid family leave tax credit is available only in tax years 2018 and 2019, unless extended by Congress. Otherwise, it expires automatically on December 31, 2019.

Relationship to state/local paid family leave. The Act provides that any leave which is paid or required by a state or local government is not taken into account in determining the amount of the tax credit. Thus, the credit applies only to benefits paid voluntarily, not required by state or local law.

PINGS FOR EMPLOYERS

Consult your tax advisor. As with all things tax-related, you should consult with your tax advisor
to determine whether your existing plan is covered by the new paid leave tax credit.

Consult your financial advisor. If you don’t have a paid leave plan for your employees, consult
with your financial (and tax) advisor to determine whether the incentive provided by the tax credit
is enough to justify offering a paid leave benefit to your employees.

Consider benefits beyond monetary. In this day of strong competition for good employees,
remember that a superior benefits package can be a lure. But, with the tax credit scheduled to
last only two years, also consider whether your company can continue the benefit if the tax
credit expires on December 31, 2019. Taking away the benefit might not be a good employee
relations move at that time.

MATRIX CAN HELP! At Matrix we offer a full suite of leave of absence and disability management tools. This includes management of employer-specific leave plans, as well as FMLA, state leave laws, leave (and more) as an ADA accommodation, and disability plans. To learn more, ping us at ping@matrixcos.com.

This is our second entry in this series of 3 blog posts on mental examinations and the Americans with Disabilities Act. For the first article, discussing ADA mental examinations and the employer’s obligation to provide a safe workplace, click here.

Our second case study poses the question, can an employer require a worker to undergo a psychological exam without creating an ADA “regarded as disabled” claim for the employee?

The facts. Evangelene Monroe had been a job scheduler for her employer Consumers Energy (CE) for 13 years when she started exhibiting aberrant behavior. Her supervisor noted that Monroe was losing focus and concentration at work, that she had become increasingly secretive, and was not interacting with her co-workers during staff meetings as in the past. Monroe’s work performance was suffering significantly.

Monroe filed a complaint with CE’s Compliance Department, in which she reported that she was being tracked and surveilled by coworkers by various means: interception of personal text messages, listening devices on her phone and in her work cubicle, camera surveillance at work and at home, a GPS tracking device on her car, and eavesdropping via the key fob for her vehicle. Her complaint was investigated by Kathleen Delaney, CE’s director of Human Resources, who did not find any merit to Monroe’s allegations. Due to the nature of Monroe’s charges, Delaney arranged to have Monroe scheduled for an IME to determine if she was able to perform the essential functions of her job.

Dr. Dutes performed a neuropsychology evaluation and reported that Monroe showed a high degree of interpersonal sensitivity and a tendency toward paranoid thinking. He recommended 12 sessions of psychological counseling and then a reevaluation of her ability to return to work. Monroe refused the counseling and in January 2014 she went out on paid sick leave for several months. She then worked part time elsewhere and collected some unemployment.

In late 2014 Delaney contacted Monroe about returning to work but told Monroe she would still have to undergo the counseling. Monroe insisted that she was better, which was confirmed by another neuropsychological exam in April 2015. Nonetheless, Dr. Dutes still recommended 8-12 counseling sessions. Monroe still objected and filed a charge with the EEOC. She was not satisfied with the EEOC investigator because, according to Monroe, the investigator told Monroe she needed to undergo the counseling. Monroe finally agreed to the counseling and returned to work at CE full time in December 2015. No surprise, Monroe filed suit against CE in January 2016.

Regarded as disabled? The ADA extends its nondiscrimination protections to include an individual who does not have an impairment but is regarded as having one. In her lawsuit Monroe did not claim that she had a qualifying mental impairment under the ADA. Rather, Monroe alleged that by requiring her to undergo the neuropsychological exams, CE showed that it “regarded” her as disabled. She further alleged that the exams constituted an adverse employment action by CE.

To establish this claim, Monroe had to show that she had been discriminated against because CE perceived that she had a mental impairment. The court explained that a person is “regarded as” being disabled under the ADA if: (1) an employer mistakenly believes that a person has a physical impairment . . . or (2) an employer mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, the employer’s actions are based on a misperception about the individual.

The employer’s Catch-22. So Monroe’s charge was that CE regarded her as disabled by virtue of its requirement for her to participate in mental health evaluations. Wow, that would really be a Catch-22 for employers, wouldn’t it? The employer has the no-win choice of (1) allowing the employee to continue to work with possible consequences of poor performance or safety risks to the employee or his co-workers or the employer’s property; or (2) requiring the employee to undergo a mental exam at the cost of establishing a claim of regarded-as discrimination against itself. A third possibility is equally untenable: terminating the employee on the basis of the employer’s unsubstantiated concerns about the employee’s mental condition and risking a true regarded-as claim.

The court saves the day. Fortunately for employers, the court ruled that an “employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.” Relying on an earlier case from the 6th Circuit the court explained that an employer has the right to determine the cause of an employee’s aberrant behavior and doing so is not enough to suggest that the employee is regarded as mentally disabled. An employer-requested psychological evaluation is in full compliance with the ADA if “restricted to discovering whether the employee can continue to fulfill the essential functions of the job”; in other words, if it is job related and consistent with business necessity.

Track behavioral changes. As with our employer in last month’s case study, CE had numerous examples of
Monroe’s strange behavior, not just a couple of isolated incidents. Moreover, Monroe’s supervisor noted that her
behavior and job performance had changed over time. That observation of change can be an important factor
in supporting the need for a mental health exam.

Keep consistent. In requiring the neuropsychological exams, CE focused on whether Monroe could perform her
job functions. This supported that the exam was job-related and consistent with business necessity. This is
permissible even though the exam might reveal an ADA-qualifying mental impairment.

Maintain communication. This employer was very diligent in staying in touch with the employee and trying to bring
her back to work. In fact, Monroe did return to work full time due to CE’s efforts. Although Monroe sued anyway,
CE had done the right thing. This did not play a part in the court’s written decision, but CE certainly gets Brownie
points for good employment practices.

UP NEXT: One intriguing issue the court did not address directly is whether an employer can require an employee to undergo psychological counseling as a condition of returning to work. Stay tuned for our 3rd post in this series, which will take on this and other issues related to the ADA and mental health exams.

MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination. You always retain the final decision, but we aid in the assessment and manage the intake, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialist is at the ready with practical advice and expert guidance. To learn more, ping us at ping@matrixcos.com.

Consider this situation: Your employee Melvin is exhibiting alarming behavior – aggressive interactions
with coworkers, loud banging of drawers and doors, unfounded suspicions of surveillance, incomprehensible mumbling or rants. Melvin has not asked for time off or any sort of workplace accommodation, but you are concerned about whether Melvin is capable of performing his job, or worse, whether he presents a threat to the safety of himself or his coworkers.

Can you make Melvin undergo an independent medical exam (IME) to assess his mental fitness to work? In two recent lawsuits, coming at the issue from two different angles, the courts each ruled “yes,” as long as certain conditions are met. This blog post starts a series of 3 articles addressing these new cases and mental health exams under that ADA. Read on to learn how coworker safety and “regarded as” ADA discrimination meet in the IME examination room (figuratively speaking).

Setting the stage. Under the ADA, any type of medical examination must be job-related and consistent with business necessity. According to the EEOC, this is established when the employer has a reasonable belief, based on objective evidence, that:

(1) An employee’s ability to perform essential job functions will be impaired by a medical condition; or

“Preventing employees from endangering their coworkers is a business necessity.” Our first case study is Painter v. Illinois Department of Transportation. Deanna Painter was as an Office Administrator for the Illinois Department of Transportation. Previous coworkers complained about Painter’s behavior, stating that she frequently snapped and screamed at them, gave intimidating stares, ranted, mumbled to herself, and banged drawers in her office. Her coworkers were concerned she would “go postal.” Current coworkers reported that she glared and growled at them, kept a log of all their actions, and was angry, abrasive, and threatening. She also wrote an email to her union representative about a clock that was 30 minutes fast, stating that the clock “was a tell-tale sign for me. It told me everything I needed to know.” She then made a comment in the email about something being dead. The union rep took this as a death threat and refused to communicate with her further. (That, of course, speaks volumes when even the union rep is afraid to talk with an employee!)

IDOT put her on paid administrative leave and required her to undergo an IME with a psychiatrist. The psychiatrist concluded that Painter might suffer from a personality disorder but nonetheless cleared her to return to work. After her return, complaints from coworkers started anew. Painter was reprimanded but the conduct continued, including argumentative, confrontational, insubordinate, and disruptive behavior.

IDOT again placed Painter on a paid administrative leave and sent her for another IME with the same psychiatrist. The psychiatrist reviewed extensive additional notes, emails, and documents regarding Painter’s behavior. This time he concluded that Painter was unfit for duty because of her “paranoid thinking and highly disruptive behavior which results from her paranoia,” which is a risk factor for violence.

Painter sued IDOT, alleging that it had violated the ADA by forcing her to attend “unnecessary” medical examinations. The 7th Circuit Court of Appeals disagreed and found both psychiatric IMEs to be job-related and consistent with business necessity. The court concluded, “Preventing employees from endangering their coworkers is a business necessity: a safe workplace is a paradigmatic necessity of operating a business.” Both exams followed extensive unstable conduct by Painter and numerous complaints by coworkers about concern for their safety due to her conduct. Importantly, the court noted the choices an employer faces in this situation and came down on the side of the employer:

Employers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.

Multiple observers. Numerous coworkers observed and reported Painter’s
actions over many months leading up to the first IME and then the second exam.
While some situations may require faster action, in this case the amount of
information about Painter’s conduct was helpful to the employer’s case.

Document, document, document! Painter’s supervisor kept detailed notes of
her actions and his discussions with her, as well as her odd emails. He also
gathered written statements from her coworkers. These proved very important
in the court’s analysis of whether IDOT had sufficient grounds to require the IMEs
as job-related and consistent with business necessity.

Level of odd conduct. Don’t order medical evaluations based on minor incidents
of strange behavior. As the Painter court observed: “That an employee’s behavior
could be described as annoying or inefficient [does not] justify an examination; rather,
there must be genuine reason to doubt whether that employee can perform
job-related functions.”

Direct threat? Maybe not. The court did not specifically analyze whether Painter’s
conduct established that she presented a “direct threat” to coworkers. The burden
to prove this element is quite high –the analysis includes consideration of how imminent
and likely the threat is, as well as the anticipated duration and severity of the threat.
In the Painter case the court chose to focus on the employer’s obligation to provide
a safe workplace (and perhaps also believed that the facts and psychiatric diagnosis
of paranoia spoke for themselves).

UP NEXT: Watch this space for a discussion of a case where the employee claimed that the employer “regarded” the employee as disabled in violation of the ADA because it required the employee to go through a mental health IME.

MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination. You always retain the final decision, but we aid in the assessment and manage the intake, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialist is at the ready with practical advice and expert guidance. To learn more, ping us at ping@matrixcos.com.

On Friday the U.S. Department of Labor today announced a 90-day delay – from January 1 to April 1, 2018 – of the applicability date for ERISA plans to comply with the December 16, 2016, “Final Rule” amending the claims procedure requirements applicable to disability benefits.As explained below, further delay of the applicability date beyond April 1 is not out of the question.The official notice will be published in the Federal Register on November 29, 2017, but an unofficial version can be reviewed here.

. . .[T]he delay of the applicability date announced is intended to give interested stakeholders the
opportunity to submit, and for the Department to consider, data and information related to concerns
by some insurance industry and employer groups, and some members of Congress, that the claims
procedure amendments will drive up disability benefit plan costs, cause an increase in litigation and,
in so doing, impair workers’ access to disability insurance benefits.

The DOL published a notice in the Federal Register on Oct. 12, 2017, seeking comments on the proposed 90-day delay of the applicability date of the Final Rule. That comment period ended on October 27 and on November 24 the DOL announced its adoption of the delay. Also on October 12 the DOL also asked for comments that “provide data and information germane to a re-examination of the merits of repealing, replacing, modifying, or retaining the rule.” That comment period ends on Dec. 11, 2017.Comments can be submitted by clicking on the “Comment Now!” button at this link.

The 108 public comments in support of and in opposition to the 90-day delay can be reviewed here.Some of the commenters expressed concern that a 90-day delay was not sufficient to allow the DOL to review and consider all data and comments submitted regarding whether any changes (other than the delay) should be made to the Final Rule.According to the DOL, however:

. . . [V]arious stakeholders made a commitment to provide such data and information to the
Department. . . .If the Department receives such supporting data and information, the Department
will provide interested stakeholders with a reasonable opportunity for notice and comment on that
data and information. Only at that point would the Department be in a position to seriously consider
any further delay of some or all of the requirements of the Final Rule beyond April 1, 2018.

We will continue to watch for developments regarding this subject.However, it took the DOL over four weeks to determine whether to extend the applicability date for 90 days.Given the more substantive issues now pending regarding the Final Rule and the comment closure date of December 11, it is unlikely that the DOL will make any significant announcements no sooner than late January 2018 at best.

What is Matrix Doing? At Matrix we have been working diligently to prepare for the new rules. Regardless of the outcome of the DOL review, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by April 1, 2018, or other new effective date. To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service. Our practice leaders and account managers will keep clients, producers, and others apprised of our work during the lead-up to the effective date – whatever it is! If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

Section 380-7.2.e. of the New York Paid Family Leave law requires employers to post a notice to employees of their rights under the law:

Every covered employer must display or post, and keep posted, a typewritten or printed notice concerning PFL in a form prescribed by the Chair.The notice must be displayed in plain view where all employees and/or applicants can readily see it.

The state has now issued form PFL-120 for employers to use for this purpose.It can be obtained by sending an email to certificates@wcb.ny.gov.

Identical bills that propose significant leave of absence rights and job protections for victims of domestic violence, dating violence, sexual assault, and stalking were introduced simultaneously in the US Senate and House of Representatives on October 31, 2017. If passed, the bills (S 2043 and H 4198) will require employers to provide up to 30 days of job protected and partially paid “Safe Leave” for victims – referred to as “survivors” – of these abusive personal crimes.

Startling statistics. The bills provide some eye-opening Congressional findings regarding the impacts of these crimes:

Studies indicate that one of the best predictors of whether a survivor will be able to stay
away from his or her abuser is the degree of his or her economic independence. However,
domestic violence, dating violence, sexual assault, and stalking often negatively impact
a survivor’s ability to maintain employment.

Survivors of severe intimate partner violence lose nearly 8,000,000 days of paid work,
which is the equivalent of more than 32,000 full-time jobs and almost 5,600,000 days
of household productivity each year.

Nearly 1 in 4 women and 1 in 9 men in the United States have suffered sexual violence,
physical violence, or stalking by an intimate partner.

Annual costs of intimate partner violence are estimated to be more than $8,300,000,000
in direct costs of medical and mental health care and indirect costs of lost productivity.

Based on these statistics and more, the goal of the bills is “to empower survivors of domestic violence,
dating violence, sexual assault, or stalking to be free from violence, hardship, and control, which
restrains basic human rights to freedom and safety in the United States.”

Several states have similar laws for the protection of victims of such personal crimes, although none of them contain pay provisions. The passage of the most recent of such laws in Nevada prompted our prior blog post on these leave laws, in which we summarized the Nevada law and identified other states with similar laws: Leave rights for victims of domestic violence: Growing need, multi-state trend.

Summary of the bills’ provisions. Here is a rundown of the key provisions of the two bills. Several key
attributes of the leave rights are not specified in the bills, as noted below. We would expect that, if passed,
the Department of Labor regulations authorized by the bills would clarify these points.

Keep in mind that these were just introduced and are likely to go through changes as they are considered
by both houses. We will be watching their legislative journey and will report any updates on this blog.

ISSUE

PROVISION

Eligible employees

All employees – no eligibility requirements such as length of service or hours worked.

Includes full-time, part-time, and temporary employees.

Covered employers

Employers with 15 or more employees.

Persons entitled to leave – “survivor”

Employee who, personally or whose family or
household member, is experiencing or has experienced:

A son or daughter, parent, spouse, domestic
partner, or any other individual related by
blood or affinity whose close association with
the person is the equivalent of a family
relationship; and

Is not the abuser involved.

Leave reasons

Leave can be used for the following activities related to the abuse, for the employee or the family or household member:

Seek medical attention;

to obtain services from a survivor
services organization;

to obtain behavioral health services
or counseling;

to participate in safety planning,
temporary or permanent relocation,
or taking other actions, to increase safety; or

to take legal action, including preparing
for or participating in a civil or criminal
legal proceeding.

Amount of “Safe Leave”

30 days in a 12-month period.

COMMENT: The bills do not specify whether
the 30 days are work days or calendar days,
which could result in either 6 weeks or 4.3
weeks of leave respectively. The most likely
interpretation is 30 work days, but we will
watch for clarification.

COMMENT: The FMLA allows usage as a continuous/ block
leave, as a reduced schedule, and as intermittent periods
of leave of varying increments.

Pay provisions

Employees will accrue up to 56 hours of paid
Safe Leave at an accrual rate of 1 hour of paid
leave per 30 hours worked.

Exempt employees (those not subject to
overtime pay requirements) are assumed to
work 40 hours per week for accrual purposes;
if they normally work a shorter week, the hours
worked in that normal shorter week are used for accrual.

Accrual and carryover are maxed at 56 hours
of paid leave.

Employees start accruing paid Safe Leave upon
hire, but cannot use accrued time until the 60th
calendar day of employment.

Accrued paid leave used by the employee
counts toward the total 30 days per 12 months
of Safe Leave

Employee request for Save Leave

Must be provided to the employer orally or in
writing as soon as practicable after the employer
is aware of the need for leave; and

Must inform the employer of the expected
duration of the leave [and, presumably, the dates].

The employee must schedule the requested
leave at a time that does not unduly disrupt the
employer’s operations, unless such scheduling
is not practicable.

Documentation

The employer can require documentation
from the employee to support the leave.

Several types of documentation
are acceptable, including a police
report, court order, sworn statement
from the employee or family/household
member, documentation from an
attorney or medical professional, and more.

The employer cannot specify the type of
documentation that is acceptable for the
requested leave.

The employee must submit documentation
within 30 days of the first date of Safe Leave,
but an employer cannot deny leave while
awaiting documentation.

Employer notice to employees

None required.

COMMENT: The bills do not require any form of
notice to employees, either in general such as
posting or with respect to a specific Safe Leave request.

Job protection

An employee must be reinstated to the same
or an equivalent job upon return to work from
Safe Leave.

Benefits

Employers must maintain employees’ coverage
under any group health plan or employee welfare
benefit plan during Save Leave.

Interaction with FMLA

Safe Leave under the proposed laws will be
“in addition to any leave taken (directly or indirectly)”
under the FMLA, not to exceed 30 days in
a 12-month period.

COMMENTS:

The bills are not clear whether leave for a
reason that qualifies under both FMLA and
these bills (e.g., leave for a serious health
condition of the employee or a family member
that results from domestic abuse) would count
toward both.

It does appear that this leave is in addition to
leave taken under the FMLA for reasons not
covered by the Safe Leave law – not just
additional leave reasons under the existing
FMLA 12 week entitlement.

Interaction with other leave laws or employer policies

An employee may substitute other leave available
pursuant to state or local law, a collective bargaining
agreement, or an employer program or plan for an
equivalent period of Safe Leave.

Other provisions

The bills are quite detailed. At present some additional provisions include:

Prohibitions against discrimination, retaliation,
and interference with rights.

Federal and state entitlement to unemployment
compensation when an employee is separated
from employment due to circumstances related
to being a survivor of domestic violence, dating
violence, sexual assault, or stalking.

The “Survivors’ Employment Sustainability Act,”
which protects employees and applicants from
discrimination, harassment, and retaliation based
on the individual’s status as a survivor of domestic
violence and other personal abuse (including a
survivor of an unauthorized communication of an
intimate image of the individual).

Prohibitions against insurers and employers
who self-insure employee benefits from
discriminating against survivors of domestic violence,
dating violence, sexual assault, or stalking and
those who help them in determining eligibility,
rates charged, and standards for payment of claims.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Hello, all you ERISA folks. How many of you are losing sleep over the new ERISA rules for disability claims handling? As we previously discussed here, the DOL has proposed delaying the effective date of these rules (the “Final Rule”), which are currently scheduled to go into effect for claims filed on or after January 1, 2018. But, as we previously reported, the US Department of Labor announced that it is “reviewing these amendments for questions of law and policy” and solicited public comments on its proposal to delay the effective date of the Final rule by 90 days (until April 1, 2018).

The public comment period on this proposal ended on October 27, and today the DOL posted the 108 comments received. They can be reviewed here. Not surprisingly, comments from claimants and attorneys for claimants oppose the delay, and claims handling and insurance companies favor the extension.

Also today, I had a discussion with a DOL representative working on this issue to inquire when we could expect the DOL’s decision on the delay. I was unable to obtain any specific information (not surprised!) but received assurances that the DOL is aggressively reviewing and considering the comments received. They are very aware that affected parties are waiting eagerly – or anxiously – for the ruling. We will provide immediate updates of any new developments on this blog.

And feel free to suggest any FMLA, ADA, disability, or other absence management challenges as topics for future blog posts!

What is Matrix Doing? At Matrix we have been working diligently to prepare for the new rules. Regardless of the outcome of the DOL review, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018, or other new effective date. To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service. Our practice leaders and account managers will keep clients, producers, and others apprised of our work during the lead-up to the effective date – whatever it is! If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

Business was great and Ichabod decided to expand his company, Crane’s Daylight Deliveries, to include Midnight Messengers. Tired of whiling away his nighttime hours as a ghoul, Harry the Headless Horseman applied for a night messenger position with Crane’s – dropping off his résumé at midnight, of course. In a hurry to get the new service off the ground, Ichabod hired Harry sight unseen on the strength of his résumé, which touted Harry’s many years of experience as a nighttime horseman familiar with the trails and roads around Sleepy Hollow. He sent Harry a letter by his Daylight Deliveries service and asked him to start work that night.

Headless Harry’s gig called for him to pick up packages and letters for delivery, after dark, from the hollowed out oak tree next to Crane’s offices. Nervous about those nighttime phantoms, Ichabod left work before dark and did not meet Harry right away.

Harry started work and loved the job – riding the familiar lanes, but with purpose; speeding important packages and messages to the local citizenry as soon as possible. No more “delivered next day” if a package wasn’t dropped off at Crane’s before 3 pm! Crane’s received accolades for being on the cutting edge of package delivery, and praise for the horseman who silently left packages by the doorstep and rode away into the night without so much as a “how do you do.”

Unfortunately – due to having to hold his head with one hand as he rode – Harry only had one hand to hold onto the parcels. Although he delivered his bailments safely, it took him more trips to accomplish his nightly mission than if he could carry several items at once. He sometimes failed to complete his essential task of making all deliveries before sunrise. After a few days of work, and following Crane’s personnel policies, Harry asked for an accommodation to assist him in performing the essential functions of his job: saddlebags to tie onto his horse to put the packages in. He would then be able to finish his work in the dark, as promised by Crane’s Midnight Messengers – boxes with breakfast! It was more than a catchy tagline; it was a requirement of the position!

Ichabod received Harry’s request with alarm. How much would these saddlebags cost? None of his other couriers had these bags. What was Harry’s problem, and would saddlebags really enable Harry to do the job? Ichabod arranged to meet Harry at dusk on Hollow Bridge – very close to Ichabod’s abode so he could get home before dark – to discuss his request.

Imagine Ichabod’s panic when Harry showed up with his head resting on his saddle, held in place with one hand! Why, no one could deliver packages without his head attached! How could he read the addresses on the packages and find the destinations? How could he ask directions if needed? Ichabod almost fell out of his saddle when Harry greeted him loudly by name and held his head up (in his hands) to look Ichabod in the eye (as his mother had taught him to do when speaking with someone).

As you might have guessed, the rest of the story reads like an ADA nightmare. Ichabod stuttered and spluttered but told Harry he could not grant the accommodation – the cost was too high, other messengers would want the same, and he could not treat Harry differently by giving him saddlebags. And besides, Ichabod said, a horseman without a head simply could not do the job. “You’re fired!”

Not surprisingly, Harry filed an EEOC charge against Crane’s Midnight Messengers, alleging discrimination based on disability and failure to accommodate. Ichabod initially refused to settle Harry’s charge but, after the EEOC’s investigation, entered into a consent decree in Night Court. Amid much publicity and expense, which Ichabod could have avoided if he had followed the Boos! for Employers below, Ichabod and Crane’s Midnight Messengers paid Harry a 2-year supply of corn and pumpkins, plus another few bushels of each for Harry’s attorneys.

Pings (we mean Boos!) for employers:

Where did Ichabod and Crane’s go wrong? Let’s count the ways:

Wisely, Ichabod did not contest that Harry had a disability: that was pretty open and obvious to all.
But, he did not engage in the interactive process with Harry. Had he done so, Harry could have clearly explained
how the saddlebags would help him do his job (if that wasn’t obvious to anyone with a sound head on his
shoulders . . . ). If Ichabod still wasn’t convinced the bags would be a reasonable and effective accommodation,
he should have explored other possible accommodations with Harry.

Moreover, Ichabod hadn’t taken the time or done the research to find out whether the cost of the saddlebags
would be an undue hardship. Mere cost alone is often not an adequate “hardship” for a thriving business like
Crane’s to deny an accommodation.

Ichabod fired Harry based on a myth or stereotype assumption about what a person with Harry’s disability
– a detached head – couldn’t do instead of looking at what he could. Perhaps this is unusual for someone with
a dismembered head, but Harry was still able to see and speak, as Ichabod had seen and heard for himself.
Moreover, except for a few delayed deliveries which the bags would prevent in the future, Harry had been
doing the job successfully for several days – proof that he was “qualified” for the job and could meet the nighttime
drop off requirement with the aid of the saddlebags.

Ichabod rejected Harry’s requested accommodation for fear that others would want the same job aid. But how
many headless workers does Crane’s have? And sometimes under the ADA employers DO have to treat workers
with a disability differently than others.

Even though Crane’s Midnight Messengers had good ADA policies in place, directing employees how to ask for
an accommodation, the company failed to train its managers – including Ichabod himself – on the requirements
of the ADA and how to handle an accommodation request. Investing in training is relatively inexpensive compared
to the costs and business disruption caused by a single ADA lawsuit!

Finally, Ichabod failed to engage Matrix to help him through the tangle of ADA accommodations. (Obviously!)

MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests. You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialist is at the ready with practical advice and expert guidance. To learn more, spook to us at ping@matrixcos.com.

Despite the common feeling that employers have the ADA deck stacked against them, a recent case shows that courts will still closely compare the facts of an ADA failure to accommodate claims against the legally required elements of such a claim. It was a close call, but the co-employers prevailed when the employee did not raise enough racket about his mental condition to put the employers on notice of the need for an ADA accommodation.

Timothy Patton was an employee of a staffing company, Talascend. He was assigned to work at its client, Jacobs Engineering. He claimed to have been subjected to mockery and name-calling by co-workers and his supervisor because of his stutter. He also complained about the noise in his work space to his supervisor and asked that he move him to a quieter area “so that [his] nerves would not affect
[his] stuttering.” Patton also complained to Talascend (which offered to reassign him; he declined)
and emailed a lead engineer at Jacobs about taking time off from work due to his stress.

As a result of his stress, Patton had a panic attack while driving and caused a car accident. He did not
return to work at Jacobs and instead, filed a complaint with the EEOC and the Louisiana state equivalent,
accusing Jacobs and Talascend of harassment and failure to accommodate his disability in
violation of the ADA.

The trial court granted summary judgment in favor of co-employers Jacobs and Talascend, and
the 5th Circuit Court of Appeals upheld this ruling. It strikes me, however, as a lucky call for the
employers. Let’s focus on Patton’s claim that Jacobs failed to accommodate him under the ADA.
The ADA requires an employer to make reasonable accommodation[s], absent undue hardship,
“to the known physical or mental limitations of an otherwise qualified individual with a disability.”
The question was whether Jacobs knew that Patton had a “disability” and was asking for an
accommodation when he complained about noise in his work area.

Patton had made numerous complaints linking his nerves and stuttering to the noise in the workplace
and asked to be moved to a quieter work location. The court did not find this to be sufficient.
Rather, Patton needed to show that the limitations he experienced were the result of his disability,
and that Jacobs knew it. In particular, in the case of a mental disability like Patton’s, “specificity in
attributing a work limitation to a disability is particularity important.” Jacobs and Talascend could
not be expected to know of or understand Patton’s “childhood onset fluency disorder” without more
specific information from him.

With respect to the ADA hostile work environment claim, Jacobs again dodged a bullet. The 5th Circuit
found there was enough evidence of harassment about Patton’s stuttering by quite a number of people
and over an extended period of time to allow the claim to be sent to a jury. However, Patton had failed
to avail himself of both defendants’ anti-harassment policies and thus could not maintain his claim for
hostile work environment.

There are no “magic words” for an employee to request an accommodation, but as the Patton
case makes clear, the employee still needs to provide enough information for the employer to
understand he is seeking an adjustment in his work conditions for a reason related to his disability.

Be wary, though! The outcome of this case was a lucky one for the employers. If Patton had phrased
his complaints just slightly different, or provided a bit more information about his condition or his
need – or if the case had been determined by a different court – the outcome could have been
a jury trial. In that case, the evidence of harassment based on Patton’s stuttering could have
had an impact on the entire case.

When in doubt about whether an employee is requesting an ADA accommodation, ask the employee,
“How can I help?” This opens the dialog without assuming the employee has a disability or
needs an accommodation. Then, with someone like Patton, you can then explore what is causing
his problem and what impact it has on his ability to work.

Make sure your policies provide employees with clear avenues (more than one!) of complaint in
the event of discrimination, harassment, or retaliation – and that employees know about them.
Although this case does not give us much factual detail, this type of policy saved the employers
from liability because, apparently, Patton did not register his complaints in the correct manner
or with the correct persons – probably the HR department.

Finally, as we always advise, train your supervisors so they know when someone might be asking
for an ADA accommodation and to whom they need to direct the employee to start the
interactive process.

MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests. You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialist is at the ready with practical advice and expert guidance. To learn more, contact us at ping@matrixcos.com.

California has enacted the New Parent Leave Act to amend the California Family Rights Act (CFRA). Effective January 1, 2018, employers with 20 or more employees will be required to provide 12 weeks of leave for bonding following the birth, adoption, or foster placement of a child. To be eligible, an employee must have worked for the employer:

For 12 months of service;

For 1250 hours in the 12 months immediately prior to the start of the requested leave; and

At a worksite with 20 or more employees within 75 miles.

Currently, CFRA applies only to employers with 50 or more employees, and the third eligibility requirement is employment at a worksite with 50 or more employees within 75 miles. The new law will extend coverage to employees of smaller employers and to employees of large companies who work at smaller worksites.

The law does not apply to an employee who is subject to both CFRA and the federal FMLA, so an employee cannot double-dip on leave rights just because the employee is employed at a worksite that qualifies by having both 20 or more and 50 or more employees within 75 miles.

Regulations Pending. The Act does not yet have supporting regulations. However, it directs the Fair Employment and Housing Council (which promulgates regulations that implement CFRA and other California anti-discrimination laws) to incorporate existing CFRA regulations by reference to govern leave under the Act to the extent that those regulations are within the scope of, and not inconsistent with, the Act.

This means that topics on which the Act is silent are likely to be interpreted and governed by existing CFRA regulations. Examples include CFRA regulations that require employees to take bonding leave within one year of the new child’s birth or placement and that require employers to allow intermittent bonding leave in minimum two-week increments plus two instances of shorter leave.

Additional details:

As with CFRA, the New Parent Leave Act requires employers, upon or before the commencement
of leave, to provide the employee a guarantee of reinstatement to the same or a comparable position
after the leave.

If both parents work for the same employer:

o The employer can limit the total amount of bonding time for the parents to a
combined 12 weeks; and

o The employer may but is not required to permit the employees to take bonding leave
at the same time.

The employee may elect to use accrued vacation pay, paid sick time, other accrued paid time off,
or other paid or unpaid time off negotiated with the employer, during the period of parental leave.

The employer must maintain and pay for coverage under a group health plan at the same
level and under the conditions that coverage would have been provided if the employee had
continued to work rather than take leave.

The New Parent Leave Act does not affect an employee’s ability to take pregnancy disability
leave is the employee is otherwise qualified for that leave.

The new law authorizes a parental leave mediation pilot program. Under the program, within
60 days of receipt of a right-to-sue notice related to an alleged violation of the new Act, an
employer may request all parties to participate in the department’s Mediation Division Program.
In such case, the employee cannot pursue a civil action until the mediation is completed. The pilot
program is set to expire on January 1, 2020.

The text of the New Parent Leave Act (California Government Code § 12495.6) can be viewed here.

MATRIX CAN HELP! Questions about how legislative changes or court opinions could impact your business?
Want to learn more about our benefits and absence management solutions? Matrix provides leave, disability,
and accommodation management services to employers seeking a comprehensive and compliant solution
to these complex employer obligations. We monitor the many leave laws being passed around the country,
watch the courts and governmental agencies, and specialize in understanding how they work together.

For leave management and accommodation assistance, contact your Account Manager or local
Reliance Standard Sales Representative or contact us at ping@matrixcos.com.

They’re out! The long-awaited, much anticipated application and certification forms for New York Paid Family Leave (NY PFL) have been posted on the NY PFL website HERE! I have reviewed the forms quickly but there is much to absorb and ponder. Such as, how many claims management systems will be able to handle an employee’s choice to answer the gender question with the third option, “Not designated/Other”?

As a reminder, NY PFL goes into effect on January 1, 2018, to provide leave to eligible New York employees for three reasons: to bond with a new child, to care for a family member with a serious health condition, and to attend to matters necessitated by a family member’s active military duty. Leave starts at 8 weeks in 2018 and tops off at 12 weeks in 2021 and subsequent years. Similarly, the pay benefit starts at 50% and caps at 67% in 2021. The benefit is funded by employee payroll contributions.

Watch this blog for further analysis down the road. In the meantime, we want to share some basics. Here are the new forms that have been released, and a few notes:

Applying for Paid Family Leave. New York has provided this “cover page” to accompany each certification form. It gives very basic instructions on the steps the employee must take to apply for NY PFL for each of the three leave reasons.

Request for Paid Family Leave (Form PFL-1). This form is not posted as a stand-alone document. Rather, it accompanies each of the certification forms on the New York website, so no matter the reason for the employee’s leave, the request form is at the same link. The form is 4 pages and also has 2 pages of instructions (PFL-1 Instructions), which should prove helpful in answering many employee questions about NY PFL and the process.

Bonding Certification (Form PFL-2). This short form (again, with instructions) provides very helpful direction on the documentation required to support a request for bonding leave, categorized for the birth mother, other parent, foster parent, and adoptive parent.

Release of Personal Health Information Under The Paid Family Leave Law (Form PFL-3 – Release of PHI). Designed to accompany an employee’s request for leave to care for a family member, this form may be helpful in obtaining the medical information necessary for managing this type of leave. As an observation, however, Matrix has not had trouble getting FMLA certifications for care of a family member without such a release.

Health Care Provider Certification For Care Of Family Member With Serious health condition (Form PFL-4). Unlike California and a few other states, New York allows the employer/carrier to obtain the diagnosis of the family member’s health condition. The form requires the provider to identify his/her credentials and specialty. The form is 2 pages and the instructions are 1 page.

Military Qualifying Event (Form PFL-5). Not much to say about this simple form.It requires the employee to identify for which of the 8 reasons the employee needs leave, and directs the employee to attach supporting documentation. A companion form (PFL-5-T) is a template for supporting the leave request when other documentation is not available for leave to meet with a 3rd party.

Early Observations – Some Concerns. As noted above, we have not completed our analysis of these newly released forms, but we have already spotted some potential challenge areas. For example:

Neither the Request for Paid Family Leave (PFL-1) nor the certification form for caring for a family member (PFL-4)
provides a definition of “serious health condition” In fact, the provider is never required to certify that the employee’s
family member has a serious health condition.

Also, neither the employee nor the provider is required to identify what kind of “care” the employee will be providing
to the family member. We at Matrix know from experience that many employee requests under the similar FMLA
provision do not meet the requirement for taking this kind of job-protected leave – and now it will be
paid. A challenge to verify proper usage, to say the least.

The forms refer to the employer’s insurance carrier, but some employers will be self-funded. This could create
a problem in getting forms properly completed and the correct information provided to the correct party.
For example, as written, the form for release of a family member’s health information (PFL-3) authorizes release
to the insurance carrier, but not to the self-funded employer. While this can be corrected by including the employer’s
name instead of the carrier’s name, we question how many times this will be done correctly on the
first go-round. Can you say “delay”?

Matrix is honing processes, training teams, and taking other steps to be ready to administer New York Paid Family Leave starting January 1, 2018. This is a natural extension of our leave, disability, and accommodation management services for employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

It’s a moving target, but we’re watching! The amended ERISA disability claims handling rules (the “Final Rule”) are set to go into effect for claims filed on or after January 1, 2018. But, as we previously reported, the US Department of Labor announced in July that it is “reviewing these amendments for questions of law and policy.” Today the DOL issued a Proposed Rule that will be published in the Federal Register on October 12, 2017. You can read an advance copy of the Proposed Rule here.

The DOL proposes to delay the effective date of the ERISA disability claims handling rules by 90 days, to April 1, 2018 (some irony there). The reason for the delay is to allow the DOL time to “solicit additional public input and examine regulatory alternatives” to the Final Rule. Here are some important dates:

Comments on the proposal to extend the applicability date for 90 days must be submitted to the Department
on or before October 27, 2017 (15 days after publication of the Proposed Rule in the Federal Register)

Comments providing data and otherwise germane to the examination of the merits of rescinding, modifying,
or retaining the rule must be submitted to the Department on or before December 11, 2017
(60 days after publication of the Proposed Rule in the Federal Register)

What is Matrix Doing? At Matrix we have been working diligently to prepare for the new rules. Regardless of the outcome of the DOL review, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018, or other new effective date. To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service. Our practice leaders and account managers will be in touch with clients during the lead-up to the effective date – whenever it is! – to discuss changes to plan notifications, procedures, and more. If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

In something of a stealth move, the New York Workers’ Compensation Board has released three forms for employers’ use in administering and complying with the Paid Family Leave Law that provides benefits starting January 1, 2018. Those of us who check the NY PFL website daily and are signed up for news feeds received no word, but had to learn of the new forms through back channels. The released forms include the following:

Employee Paid Family Leave Opt-Out of Benefits (PFL-Waiver, 9-17)

If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form. Eligibility requires 26 weeks of 20 or more hours per week, or 175 days of work averaging fewer than 20 hours per week, with a covered employer.

This form contains some interesting news. The employee’s waiver can be revoked by the employee or automatically because the employee has or will work more than the time needed for eligibility. Per the regulations, the employee then has the obligation to catch up on contributions that would have been made during the eligibility period but for the waiver, but the regulations do not specify how the employer can recoup these amounts. The form appears to authorize additional deductions from the employee’s pay to catch up for missed contributions:

I also understand if this waiver is revoked (either by me or by a change in my work schedule), my employer may take retroactive deductions for the period of time I was covered by this waiver, and this period of time counts towards my eligibility for paid family leave. [Emphasis added.]

Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).

The NY PFL regulations also calls for forms for employee use to request NY PFL, and certifications to support leave taken to care for a family member with a serious health condition, for military exigencies, and to bond with a new child due to birth or placement for adoption or foster care. Employers and insurance carriers still working to get ready for the January 1, 2018, effective date have been begging the WCB for these other forms, which will be critical in getting the information the employer is entitled to for consideration of leave requests. Employers and carriers are permitted to use their own forms, but clearly it is safest and easiest to use NY-sanctioned forms, especially at the beginning of this uncharted leave law.

Rhode Island has joined the plethora of states that have passed paid sick and safe leave legislation for the state’s workers. The Rhode Island “Healthy and Safe Families Workplace Act” (H5413/S290) was signed into law by the Governor on September 28, 2017.

The basics. Effective July 1, 2018, Rhode Island employees of an employer with 18 or more employees in Rhode Island will earn one hour of paid leave time for every 35 hours worked, up to a maximum of 24 hours of accrued paid sick and safe leave in 2018, 32 hours in 2019, and 40 hours in 2020 and thereafter. Employees can carry over any unused, accrued paid time; however, the use of such time is still subject to the maximums (i.e. 24 hours in 2018, etc.). Accrued but unused sick and safe time is not payable to the employee upon termination.

Employees begin to accrue leave as of July 1, 2018, or their date of hire, whichever is later. While employees can begin to earn and accrue leave, employers can impose a waiting period of up to 90 days for new hires before they can take any accrued time. Temporary employees must wait up to 180 days to use any accrued leave (unless the employer agrees otherwise).

Leave reasons. Employees may use sick and safe leave for any of the following reasons:

The employee’s own mental or physical illness, injury, or health condition; need for preventive care, diagnosis,
or treatment of a mental or physical illness, injury, or health condition.

Care of a family member for the same reasons as the employee’s own needs.

When an employer’s business or the employee’s child’s childcare facility or school is closed
due to a public health emergency.

When the employee or his or her family is a victim of domestic violence, sexual assault or stalking.

Covered relationships. “Family member” is broadly defined under the Act to include: child (biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or a son or daughter of an employee who stands in loco parentis to that child), parent, spouse or domestic partner, parent-in-law, grandparent, grandchild, sibling, care recipient, or member of the employee’s household. A “care recipient” is a person for whom the employee is responsible for providing or arranging health or safety related care.

Employee notice and documentation. Employees are required to provide notice (in the means designated by the employer in its policy) where the need for leave is foreseeable. Employer may also require documentation (again, as long as the employer has a policy that says so) for leaves of 3 or more consecutive work days. The documentation requirement is quite limited and only allows for documentation that the leave is for a permissible purpose. The employer may not require documentation regarding the nature of the illness or details of the domestic violence, sexual assault or stalking.

Permitted employee discipline. This Act also incorporates a few safeguards for employers:

An employer may discipline, up to and including termination of employment, an employee who is committing
fraud or abuse by engaging in an activity that is not consistent with an allowable purpose for paid sick and
safe leave;

An employer may also discipline an employee (again up to termination) who exhibits a clear pattern of taking
leave just before or after a weekend, vacation, or holiday if the employee is unable to provide reasonable
documentation that the leave has been taken for a permissible purpose.

Pings for Employers with Rhode Island Workers:

Ensure that your pay practices are in order and ready to provide for the necessary accruals and usage accounting starting July 1, 2018

Draft a clear policy governing Rhode Island paid sick and safe leave. At a minimum, be sure to specify the means by which employees must give notice of the need for Rhode Island paid sick and safe leave (e.g., by email, other written request, verbal to supervisor, a call-in line, etc.) and your documentation requirements within the parameters of the law. Be sure your employees know about these policies by special notice, new hire notice, including in your employee handbook, and/or posting in areas in which workers congregate like lunch or break rooms.

“How long of a leave of absence do I have to grant as an accommodation under the Americans with Disabilities Act?”

I get this question frequently. I have long advised that employers must consider a new or extended leave of absence as a possible accommodation. In assessing an employee’s ADA leave request, employers need to look at what the employee will be doing during that leave: Rehabilitative therapy? Trying new medications? Learning to work with an assistive device or a support animal? Maybe recovery from surgery or an injury?

The Equal Employment Opportunity Commission agrees with me – or rather, I have come to agree with the EEOC. EEOC Commissioner Chai Feldblum is often quoted as calling the ADA an “inadvertent leave law.” And indeed it is – the ADA was not designed to be job-protected medical leave of absence. Rather, the basic goal is to enable the disabled employee to work – with a reasonable workplace accommodation if needed. But for years, the Commission’s guidance has been that leave is a reasonable accommodation as long as it is of a (somewhat) definite duration and will enable the employee to perform his essential functions upon return to work.

The 7th Circuit Court of Appeals begs to differ. In a recent case, the court ruled that an employer did not fail to provide a reasonable accommodation when it denied an employee’s request for a 2-3 month continued leave of absence after exhaustion of FMLA.

The Facts. Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures from 2006 to 2013. His position was physically demanding, often requiring him to lift 50 pounds or more. Raymond had a back problem that first manifested itself in 2005. During flare-ups, the condition made it difficult or impossible for Raymond to walk, bend, lift, sit, stand, move, and work.

Raymond had generally performed well and received promotions over the years but was having difficulty in his latest position. He met with management on June 5, 2013, and accepted a demotion to second-shift lead, but never commenced work in that position. Earlier the same day, Raymond wrenched his back at home exacerbating his back condition and was in obvious pain as a result. He left work after the meeting with managers and then requested continuous FMLA leave due to his back.

During his FMLA leave Raymond stayed in touch with Heartland’s HR representatives. He received periodic extensions of his leave based on medical reports that showed he had multiple herniated and bulging discs in his spine. In mid-August, after steroid treatments yielded little improvement, Raymond informed HR that he was going to have back surgery on August 27 – the last day of his FMLA entitlement – and would need 2-3 more months of leave as an ADA accommodation. Heartland denied this request but told Raymond he was welcome to reapply when he was able to return to work.

Raymond never reapplied for work. Instead, he chose to sue Heartland for failure to accommodate. Oh, Raymond! You should have taken a different path!

“The ADA is an antidiscrimination statute, not a medical-leave entitlement.” So says the 7th Circuit. After analyzing the relevant sections of the ADA, the court stated:

A “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.” If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.

Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working. [Citations omitted.]

And this:

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.

The court acknowledged the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, such as occasional flare-ups of arthritis or lupus.

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule, two of the examples listed in [the ADA]. But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. [Citations omitted.]

Of interest and some degree of persuasion, the court compared the FMLA and the ADA as “leave of absence” statutes:

If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA. That’s an untenable interpretation of the term “reasonable accommodation.”

So there we have it. According to the 7th Circuit, a leave of absence as an ADA accommodation is not reasonable if it is expected to last more than “a couple of weeks,” or if it will “span[ ] multiple months.”

Employers have some similar comfort from the 10th Circuit in the case Hwang v. Kansas State University (2014). In that case, the court ruled that a 6-month leave was not a reasonable accommodation:

It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.

As the court said, ADA accommodations are “all about enabling employees to work, not to not work.” You can read a great summary of the Hwang case on Jeff Nowak’s FMLA Insights blog here.

Other than these two decisions, we are not aware of any other federal appellate court that has addressed how long of a leave is a reasonable accommodation under the Amendments Act (ADAAA). [The 7th Circuit includes the states of Illinois, Indiana, and Wisconsin within in its jurisdiction; the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.]

Employers, continue to tread softly and act wisely. Don’t throw caution to the wind just because one or two courts have issued a reasonable opinion. See our Pings below for recommendations on how to assess requests for leave under the ADA Amendments Act (ADAAA).

Don’t ignore the possibility of leave as a reasonable accommodation. Nothing in the 7th Circuit’s ruling changes the employer’s obligation to consider more leave of absence as a reasonable accommodation following the exhaustion of other job-protected leaves such as FMLA or a company policy of allowing a set amount of medical leave. Any inflexible leave policy could still be an ADA violation. Read more on this topic at our blog post regarding an EEOC/Lowe’s $8.6 million consent decree.

Don’t forget the interactive process. Although the ADA does not require an employer to engage in the interactive process (check out footnote 1 in the Severson opinion), that is still the best way to ensure that you are fulfilling your ADA obligations to consider a reasonable accommodation upon request by a disabled employee.

If you are thinking of denying an ADA request for leave as an accommodation, consult with your employment counsel. Even in the 7th and 10th Circuits, this is still a tricky issue. And, the EEOC will likely reject this case in its own proceedings.

MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests. You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialist is at the ready with practical advice and expert guidance. To learn more, contact us at ping@matrixcos.com.

Employers, when was the last time you asked the question “What could an FMLA suit potentially cost?” For Verizon, the answer was “a lot,” including a judgement that awarded $800,000+ to a former employee as well as:

Substantial attorneys’ fees and costs (almost always more than the fees incurred by the plaintiff)

Business disruption and loss of productivity by its employees who had to prepare and serve as witnesses, locate and review documents and assist with other inevitable litigation-related tasks

Here’s the entire story and your opportunity to learn an important lesson.

Facts. Suzette Walker worked for Verizon for over 36 years, starting as an intern and working her way up to a position paying over $93,000. Walker had a history of good reviews with the exception of 2013, when she was dinged for being absent from work. Her absence was attributed to an FMLA leave taken to recover from a shoulder injury. In 2015, that review cost Walker her job.

Verizon’s employee evaluation system had 4 ranking levels: Leading (the top score and rarely given); Performing (employee met and periodically exceeded expectations); Developing (employee had not met objectives and requirements, and improvement was needed) and New (employee had not worked long enough to be evaluated).

In 2013, Walker was assigned to a new position but then had to take FMLA leave for shoulder surgery and recovery. Walker’s manager, Brian Magee, wrote in her mid-year evaluation:

Suzette [Walker] was moved to Conduit/Highway in the first half of the year due to existing knowledge of conduit and the City Permit process. GPIS review has been a positive transition, but conduit design has been hard to transition. Suzette has missed time due to an injury, which has made the transition difficult. The conduit area is still setup for the former Conduit Engineer and I have received complaints about the conduit mailbox being full. We are not where the Conduit/Highway Team needs to be at this time. [Emphasis added.]

This was written when Walker had been out on FMLA leave for nearly 2-1/2 months and back to work at her new position part time for only about 3 weeks. In the 2013 year end performance review, which built upon the mid-year review, Magee gave Walker a “Developing” rating, although she had always received a “Performing” score in past years (and was also rated as “Performing” in 2014).

The layoff. In 2015 Verizon instructed Magee and another manager to eliminate one person from their two teams as part of a reduction in force. The managers were trained on a “rate and rank” process and instructed to use that process to determine who to terminate, looking back at each employee’s performance over the last two years. Instead, they spoke by telephone and agreed to select Walker for layoff. Magee then contrived rate and rank scores that justified the decision. Walker ended up on the bottom of the rankings, in part because of her “Developing” score in 2013 which counted as only 1 point in the rate and rank process. A “Performing” score counted as 3 points. Walker received a total score of 13 and would have tied with the other lowest employee, who received a 15, but for the hit on her 2013 evaluation. Moreover, the other employee had been on a recent performance improvement plan that, according to the rate and rank process, should have cost him 3 points. These points were not deducted from his overall rate and rank score.

In support of his bogus rate and rank score, Magee wrote that Walker “received a D[eveloping] rating in 2013 as she hadn’t learned the core engineering role as quickly as expected . . . ”

The verdict. After a five-day trial, the jury returned its verdict. Although some of Walker’s claims were dismissed, the jury found that Verizon had committed age discrimination against Walker and had retaliated against her for taking FMLA leave in 2013. The jury awarded $188,000 in damages in Walker’s favor for back pay (and $10,000 on that age discrimination claim). We’ll get to the rest of that $800,000 judgment in a bit.

The ruling. The court affirmed the jury verdict and added other damages that are within the court’s province (see table below). In its opinion affirming the jury verdict, the court recognized that Magee didn’t really conduct a rate and rank to reach his decision to select Walker for termination. However, in the fake 2015 rate and rank form, Magee wrote that Walker was slow to learn her job responsibilities in 2013. The judge stated that a jury could reasonably infer from this that Magee decided to fire Walker in 2015 because she hadn’t learned quickly enough in 2013 due to her FMLA time off. The judge also stated the jury could believe that Magee’s comments on the rate and rank form were evidence of the reasons he had in mind in selecting Walker for termination.

Insights from the winning trial attorney. Curious about this case, your intrepid reporter spoke with Christine E. Burke (Karpf Karpf & Cerutti), the attorney who represented Walker. One fact of particular interest to me was that Verizon’s retaliation (the layoff) took place two years after Walker’s FMLA leave. Usually, the protected FMLA leave and the act of retaliation occur much closer together, making it easier to infer the retaliation. Ms. Burke explained that because the rate and rank only required a 2-year performance look back, the 2013 “Developing” evaluation took on greater significance than her other 30+ years of good performance – thus allowing Magee to jerry-rig the rate and rank to achieve his desired outcome.

Ms. Burke also explained that the jury was swayed by the lack of fairness in Magee’s supposed rate and rank. Not only did Magee’s 2013 evaluation work to Walker’s detriment, but Magee did not follow the company’s rules. His failure to charge the other employee with a 3-point deduction for the PIP probably just stunk to the jury.

Finally, and perhaps most important, Ms. Burke acknowledged that the case would probably not have made it to a jury – meaning never filed, or dismissed by the court pre-trial – but for that comment in Walker’s 2013 mid-year evaluation: “Suzette has missed time due to an injury, which has made the transition difficult.”

How much? So how big was the judgment in favor of Suzette Walker? Here is rundown of the types damages that can be awarded in an FMLA case and the amounts awarded to Walker:

FMLA DAMAGES ITEM

DESCRIPTION

AMOUNT

Back pay

Common award in termination case – lost wages up to date of judgment

$188,000

Front pay

Awarded if employee has not yet become re-employed at time of judgment – lost wages looking forward

$256,000

Pre-judgment interest – on back pay only

Always awarded if back pay is awarded, at the “prevailing rate”

$6,001

Liquidated damages**

Similar to punitive damages – equal to amount of back pay plus pre-judgment interest (see **below)

** Liquidated damages are routinely awarded in FMLA cases. The employer can avoid liquidated damages only if it proves that it had a good faith belief that its act or omission was not a violation of the FMLA. An explanation for the employer’s actions is not enough; the employer must also prove it took affirmative steps to ascertain the requirements of and comply with the FMLA in the particular situation. As the Walker court ruled in awarding liquidated damages against Verizon:

The court must award liquidated damages unless the employer proves to the satisfaction of the court that the act or omission which violated the FMLA was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of” the FMLA.

This, Verizon was unable to do.

Pings for Employers

We sound like a broken record, but you must TRAIN YOUR SUPERVISORS AND MANAGERS on employee rights and employer obligations under the FMLA. Without that ill-advised comment in Suzette Walker’s 2013 mid-year review, Verizon might have succeeded in defeating her FMLA claim.

Training might also have enabled Verizon to avoid the liquidated damages by being able to show a good faith effort to educate its supervisors on employee rights and employer obligations under the FMLA.

In all your processes, treat employees who have taken or are taking FMLA leave consistently with employees who have not.

Follow your established procedures when applying discipline, assessing layoff, or otherwise affecting the employment of an employee who has taken or is taking FMLA leave.

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

The state of New York has released much-needed guidance on the tax implications of employee premium contributions and benefits under the state’s new Paid Family Leave (PFL), slated to go into effect on January 1, 2018. According to the New York Department of Taxation and Finance:

Benefits paid to employees will be taxable non-wage income that must be included in federal gross income.

Taxes will not automatically be withheld from benefits; employees can request voluntary tax withholding.

Benefits should be reported by the State Insurance Fund on Form 1099-G and by all other payers on Form 1099-MISC.

The Department released this guidance upon consideration of applicable state and federal laws and regulations, and after consultation with the federal Internal Revenue Service (IRS). The Department warns, however, that every employee, employer and insurance carrier should consult with its own tax advisor.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

As we all know, the ERISA disability claims handling rules were revised by the US Department of Labor, to be effective for claims filed on or after January 1, 2018. As part of the ever-changing governmental landscape under our current President, the DOL has now announced it is “reviewing these amendments for questions of law and policy.”

The DOL announcement indicates it will issue a Notice of Proposed Rulemaking in September (09/00/2017 to be exact!), but there is no indication as to the scope of its review or potential subjects within the amended rules that will be reviewed. Possibilities include repealing the amendments entirely, modifying or repealing parts them, and/or simply delaying the effective date.

A Notice of Proposed Rulemaking (NPRM) is a public notice issued by law when one of the independent agencies of the United States government (like the DOL) wishes to add, remove or change a rule or regulation as part of the rulemaking process. It is a process for announcing proposed regulatory changes and subsequently taking public comment. So, we may be in limbo for a while. Even once the NPRM is issued, there will still be unanswered questions as we go through the period of public comment and await any revisions and finalization.

So what to do now? If the rules go into effect in their present or similar form for claims filed on or after January 1, there is not enough time to put all preparations on hold. Moreover, we need to remember that many of the changes made to the ERISA claims handling rules are based on federal court rulings in cases where claimants challenged the plan’s decision and procedures. As a result many aspects of the new rules, as currently written, are still good guidance on how to manage disability claims.

Employers with ERISA disability plans should consult with their legal counsel for advice with respect to their specific plans and procedures. In the meantime, here are some suggestions on where employers might want to place focus while the regulatory process runs its course:

Revamp denial letters to clearly and adequately explain why the employee’s medical condition (or other factors) does not qualify the claimant for disability benefits under the employer’s plan.

Review claims handling procedures and revise as necessary to ensure impartiality and avoid conflicts of interest.

At Matrix we have been working diligently to prepare for the new rules. Regardless of the outcome of the DOL review and NPRM, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018; or a new effective date. To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service. Our practice leaders and account managers will be in touch with clients during the remainder of 2017 to discuss changes to plan notifications, procedures, and more. If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Massachusetts joins 15 other states and Washington, D.C. with similar protections for pregnant employees. These laws typically provide protections well beyond existing protections under the Americans with Disabilities Act, in that they do not require the employee to be disabled by the pregnancy in order to receive a reasonable accommodation.

The Massachusetts Act, effective April 1, 2018, provides broad protections for employees and prospective employees who are pregnant or have conditions related to pregnancy. Key provisions include the following:

Employers cannot deny an employee’s request for a reasonable accommodation due to an employee’s pregnancy or condition related to pregnancy, including lactation or expressing breast milk.

Employers must engage in a timely, good faith, and interactive process to determine effective reasonable accommodations to enable employees to perform the essential functions of their jobs.

Employers can require documentation to support a request for a reasonable accommodation. The Act identifies a broad list of types of health care providers who can supply the documentation, including not just physicians but also a variety of other medical professionals, assistants, and therapists.

Documentation cannot be required for employee requests for: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

The employer can deny an employee’s request if it can show that the accommodation would impose an undue hardship, defined as significant difficulty or expense. Factors to consider include the nature and cost of the requested accommodation, the financial resources, size, and facilities of the employer’s business, and the impact of the requested accommodation on the employer’s expenses, resources, or other impact on the employer’s business.

Employers cannot require an employee to accept an unnecessary accommodation, including a forced leave of absence.

The Act prohibits discrimination and retaliation against a pregnant employee or prospective employee in hiring and in terms and conditions of employment, or for requesting an accommodation.

Employers must provide written notice of employees’ rights under the Act, including the right to reasonable accommodations for conditions related to pregnancy. Required notices include a notice of the rights under the Act in an employee handbook, notice to all new employees upon starting employment, notice to existing employees on or before January 1, 2018, and notice to an employee within 10 days of notification to her employer of her pregnancy and/or her need to express breast milk for a nursing child.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

On July 19, the New York Workers’ Compensation Board issued its final regulations in support of the state’s Paid Family Leave law (NY PFL), which requires employers to provide paid leave benefits to employees starting January 1, 2018. The final regulations follow a public comment period on the proposed rules issued on May 24, 2017. The Board received 58 comments and has also issued an Assessment of Public Comment on Revised Proposed Regulations which provides a summary of the comments receive and the Board’s response. Few substantive changes were made as a result of the comments, but the Assessment provides helpful clarifications on many provisions – even those for which it did not make any changes.

Here is a summary of the more noteworthy (or more interesting) changes and clarifications.

Coverage of employees outside the state of New York.

Several comments requested the Board to change the regulations so that employees who do not live and work in New York are not covered by NY PFL. The Board declined to make this change and clarified that an employee is entitled to NY PFL leave and benefits if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) lives in New York.

In addition, the Board received a request to amend the regulations to allow employers to include non-New York employees in their coverage under NY PFL . The Board pointed out it does not have authority to regulate employees or insurance outside the state of New York and declined to amend the regulations per this request.

Multiple or extended leaves under NY PFL and other programs.

The Board confirmed that an employee may be able to take leave in 2017 under company policies (or the FMLA) and then be entitled to leave and benefits under NY PFL for the same qualifying event in 2018. Examples:

An employee who receives a new child on August 1, 2017, could take bonding leave under company policies

(which may provide a pay benefit) and/or FMLA in 2017, then take up to 8 weeks of bonding leave under NY PFL any time from January 1 through July 31 in 2018.

An employee could take up to 12 weeks of FMLA leave in late 2017 to care for a covered family member

with a serious health condition, then take up to 8 weeks of leave starting January 1, 2018, to continue care for the same family member.

Fortunately, this anomaly will only occur for certain leaves in 2017 and 2018, and not for subsequent years.

Notice of payroll deductions to employees.

There is no requirement in either the statute or the regulations for employers to give notice to their employees of NY PFL payroll deductions. However, Matrix recommends that employers should, in fact, provide notice of the employees’ contributions and other aspects of NY PFL so that employees have the facts and appropriate expectations. Matrix has prepared a sample introductory communication to employees for consideration, and will work with clients to craft additional messaging in Q4 2017. Employers should consult with employment counsel to ensure employee communications are appropriate to the law as well as their own corporate policies and practice.

Military exigency leave.

NY PFL provides leave to care for several defined family members with a serious health condition, including the employee’s child, spouse, domestic partner, parent, grandchild, and grandparent. However, the Board has confirmed military exigency leave under NY PFL (which adopts the provisions of the FMLA for this leave) is NOT available for leave necessitated by the military service of a grandparent or grandchild.

Leave and benefits under both New York disability and paid family leave laws.

The Board received inquiry about an employee’s ability to receive both disability (DBL) and PFL benefits for the same birth of a child. The Board pointed out that the regulations clearly state an employee can collect both disability benefits and paid family leave in the post-partum period, but not at the same time. Thus, a new mother could receive disability benefits for some period of time following giving birth, and then take paid family leave within the one year period following the date of birth.

The Board did not address the possibility of using NY PFL for the week following birth during the 7-day waiting period for disability benefits, then switch to disability benefits followed with more paid family leave for bonding. There appears to be nothing in the statute or the regulations that would prohibit this, since NY PFL can be taken in increments of one day or more.

The NY disability and PFL laws limit an employee’s total benefits under both programs to 26 weeks in a 52-week period. The Board clarified that because the employee’s use of benefits is calculated retroactively backward from each day of usage, this will bridge the 52-week period back into year 2017 during 2018.

Employee waiver of NY PFL coverage and deductions.

NY PFL allows an employee who expects that his/her term of employment will be less than 26 weeks for employees working 20 hours per week or more (or 175 work days for employees working fewer than 20 hours per week) can elect to waive coverage and payroll deductions. In response to a request for clarification, the Board has amended the regulations such that employers MUST provide notice to employees of their right to waive coverage. The waiver must be in writing and if the employee’s term of employment exceeds 26 weeks or 175 work days, the employer must start payroll deductions and can collect back premiums from the employee. The regulations do not address how the employer is allowed to collect the back premiums, but other provisions make it unlikely that additional deductions from the employee’s paycheck would be permissible.

Employers will not be permitted to automatically waive PFL coverage for short-term workers. According to the Board, it is the employee’s election to make.

Notice to employee of completed pre-filed claim.

The draft regulations required carriers to provide employees who pre-filed a claim a confirmation of receipt of the completed claim within one business day. Due to objections about the practicality of processing and assessing a claim for completeness within one day, the regulations have been changed to allow a carrier or self-insured employer three business days to send the confirmation. The payment must still be made within 18 days of receipt of the complete claim.

Inconsistency between carrier’s and employer’s determination of NY PFL benefits and leave rights.

The Board received a comment recognizing that “there could be a disconnect between the carrier’s determination and the employer’s determination about whether or not leave should be denied.” I’m quoting here because I’m not sure how else to explain this issue: The Board’s less-than-satisfactory response is, “Because the employer does not decide whether to approve or deny a paid family leave claim, and if the employer suspects fraud it is free to contact the carrier, no change to the regulations has been made.” The Board did not address the question whether the employer would be acting properly if it chooses to use the carrier’s benefits determination as a proxy for the leave determination, thus eliminating the possibility of such inconsistency.

Rights of employees with more than one job.

An employee working simultaneously for more than one New York employer will have NY PFL contributions deducted from their pay from each employer. The Board confirmed that yes, an employee can take NY PFL leave and receive benefits from multiple employers at the same time for the same leave reason. The Board acknowledged that this might result in the employee receiving total benefits in excess of the statutory cap available from employment with a single employer. However, the Board confirmed that the total number of weeks of NY PFL leave and benefits available to an employee in a 52-week period is still subject to the 8-week limit in 2018 (increasing to 12 weeks by 2021).

WHAT IS MATRIX DOING NOW?

Whew! That is about all I can bring to light in the 24-ish hours since the final regulations were published. But we are FAR FROM DONE!

In June Matrix presented webinars, FAQs, and other materials to help employers and brokers understand and prepare for New York Paid Family Leave. Over the coming days and weeks, we will use the final regulations and comments to update all materials, and develop additional ones as warranted. In August we will host another round of webinars.

In the meantime you can always learn more about the law as follows:

Check out these prior blog posts (but remember some information has changed due to revisions to the

Ask a question OR sign up for our NY PFL Tip-Of-The-Week by emailing nypfl@rsli.com.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

On July 10, 2017, the governor of Hawaii signed an amendment to the state’s family leave law, adding siblings as a family member for whom an employee can take leave. The amendment took effect immediately.

Under the Hawaii law, employees who have worked for an employer for at least 6 consecutive months are entitled to 4 weeks of unpaid, job-protected leave per 12-month period:

To bond with a newborn biological child or newly adopted child (a newly placed foster child is not covered); and

To care for the employee’s child, spouse, reciprocal beneficiary, sibling, or parent with a serious health condition.

The terms “child” and “parent” are defined broadly by the Hawaii statute for the purpose of caring for a family member with a serious health condition:

Child: biological, adopted, or foster son or daughter, a stepchild, or a legal ward of an employee.

Parent: biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law.

Employers with 100 or more employees must comply with the law.

The Hawaii family leave law does not provide leave for an employee’s own serious health condition. However, the state does have a pregnancy disability leave law; temporary disability benefits for up to 26 weeks per year through an employee/employer funded state program; and leave to donate an organ, bone marrow, or peripheral blood stem cells.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

If you don’t think you need to know about state leave laws that protect victims of domestic violence and similar crimes, consider this:

More than 27% of women and 11% of men have experienced contact sexual violence, physical violence, and/or stalking by an intimate partner in their lifetime. Commonly reported negative impacts were feeling fearful, concern for safety, and symptoms of post-traumatic stress disorder.

Significantly more women and men with a history of sexual violence or stalking reported asthma, irritable bowel syndrome, frequent headaches, chronic pain, difficulty sleeping, and limitations in their activities compared to those without a history of these forms of violence.

Centers for Disease Control 2010-2012 State Report fact sheet, accessed July 12, 2017.

In other words, many of your employees are among these victims.

At Matrix we see a comparatively small number of domestic violence leave requests. As a good employer, are you educating your employees on their rights to this type of leave in certain states or under company policies? We have no statistics for this, but it seems logical that leave taken early, when needed, may reduce the need for more extensive time off later. And as an employer you’ve done the right thing.

Some of the victims’ needs, such as treatment for and recovery from physical and mental injuries resulting from the violence, may be eligible for job-protected leave under the federal Family and Medical Leave Act and similar state laws. However, these victims often require time off for other related issues such as protecting their families by moving to a new location, obtaining counseling, and obtaining a court-issued protective order.

For these reasons, the number of states enacting or expanding laws that provide leave of absence specifically for victims of domestic violence is increasing. Nevada is the latest to join the ranks, and California has expanded its notice requirements effective July 1 (see story below).

Nevada enacts leave for victims of domestic violence

Effective January 1, 2018, Nevada employers will be required to provide leave to eligible employees who are a victim of domestic violence or whose “family or household member” is the victim of domestic violence.

Under the Nevada law, an employee must have been employed for at least 90 days to be eligible for the leave. Eligible employees may take up to 160 hours of leave (equivalent to 20 8-hour days) in a 12-month period, continuously or intermittently, within 12 months of the date of the act of domestic violence that necessitated the leave. The Nevada leave will run concurrently with FMLA if taken for an FMLA-qualifying reason (for example, to get treatment for and recover from incapacitating injuries or care for a family member).

Domestic violence is defined as an act committed by a spouse, former spouse, person with whom the victim has a dating relationship or shares a child, and other relationships, and includes acts such as assault, battery, sexual assault, stalking, larceny, compelling an unwanted action, and trespassing.

Following any immediate leave necessitated by the incident of domestic violence, an employee must provide at least 48 hours’ advance notice to the employer of leave for any of the following reasons:

For the diagnosis, care or treatment of a health condition related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;

To obtain counseling or assistance related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;

To participate in any court proceedings related to an act which constitutes domestic violence committed against the employee or family or household member of the employee; or

To establish a safety plan, including, without limitation, any action to increase the safety of the employee or the family or household member of the employee from a future act which constitutes domestic violence.

Employers may require documentation supporting the need for leave, such as a police report, copy of an application for an order for protection, an affidavit from an organization which provides services to victims of domestic violence or documentation from a physician.

“Family or household member” means a: (1) Spouse; (2) Domestic partner; (3) Minor child; (4) Parent; (5) other adult person who is related within the first degree of consanguinity or affinity to the employee; or (6) other adult person who is or was actually residing with the employee at the time of the act which constitutes domestic violence.

The law also requires Nevada employers to make reasonable accommodation(s) to employees who are victims of domestic violence or whose family or household member is a victim of domestic violence. Accommodations may include transfer or reassignment; a modified schedule; a new telephone number for work; or any other reasonable accommodations which will not create an undue hardship deemed necessary to ensure the safety of the employee, the workplace, the employer or other employees.

The Nevada bill protects employees from adverse employment actions based on taking leave as permitted by the act.

Employers are required to maintain records of leave taken for 2 years and to post a notice of employee rights. The Nevada Department of Labor is working on a form of notice for employers to post.

Domestic violence leaves in other states

With this law Nevada joins the following states that have similar domestic violence leave laws (although they vary in details by state): California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, New Jersey, New Mexico, North Carolina, and Oregon.

In addition to these specific “personal protection” leaves, virtually all states have laws that provide job protection for victims or witnesses for time spent testifying in court or assisting prosecuting attorneys with respect to various crimes, not just crimes relating to domestic violence. These laws generally do not have any employee eligibility requirements, notice requirements, or duration limitation.

California law requires employers to provide leave of absence rights for victims of domestic violence, sexual assault, and stalking. Leave reasons including taking time off from work to get help to protect the employee’s and employee’s children’s health, safety or welfare, including time off to get a restraining order or other court order. The text of the law can be viewed at this link.

Effective July 1, 2017, employers must provide a notice of employee rights under the law to all new workers upon hire and to other employees upon request. The Labor Commissioner has developed and posted a form that employers may use to comply with the notice requirements.

Pings for employers. Employers should copy the form and distribute it to all current employees and add it to their new-hire packets. In addition, although the law does not specifically require this, a great extra step is to post the notice on bulletin boards in employee break rooms and wherever other employment-related notices are posted.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

The state of Washington has enacted a law requiring paid family and medical leave for eligible employees. The state was on the forefront of the paid family leave movement when it passed a paid parental leave law in 2007, but the law never went into effect because the legislature was unable to fund the benefit. Now, a paid family leave bill much broader than the 2007 law was signed into law by Governor Jay Inslee on July 5, 2017. The law will begin providing paid leave benefits to eligible employees on January 1, 2020.*

States with paid family leave programs currently in effect are California, New Jersey and Rhode Island, plus New York (benefits beginning January 1, 2018), and the District of Columbia (benefits beginning January 1, 2020). The groundswell is huge, with more than 25 states introducing some sort of paid family leave bill so far this year!

Here is a summary of key provisions of the Washington law:

Effective date

Employees can start taking paid family leaves January 1, 2020.

Employers can begin employee payroll deductions on January 1, 2019.

Eligible employees

Must work 820 hours in the “qualifying period,” defined as the first 4 of the prior 5 calendar quarters; OR, if the employee is not yet eligible, the preceding 4 calendar quarters. Equates to about 15.75 hours per week.

Covered employers

An individual or entity with one or more employees; includes private companies, the state and subdivisions, and local governments.

Leave benefits reasons

Employee’s own serious health condition.

Bonding with a newborn or newly placed or adopted child.

Care for a family member with a serious health condition.

Military exigency (leave necessitated for various reasons due to a family member’s active duty deployment).

Maximum of $1000 per week starting in 2020, subject to adjustment by the state for each subsequent calendar year.

Employees who make 50% or less than the state’s average weekly wage (AWW) will receive 90% of their AWW.

Employees who make greater than 50% of the state’s AWW will receive:

o 90% of their wages up to 50% of the state’s AWW; PLUS

o 50% of their AWW in excess of 50% of the state’s AWW (subject to the $1000 cap)

Funding

For 2019 and 2020, the total premium is 0.4 percent of the employee’s wages, capped at the state’s AWW, beginning on January 1, 2019. Annual adjustments may be made thereafter.

An employee pays about 2/3 of the total premium through payroll deductions.

The employer pays about 1/3 of the total premium.

An employer may elect to pay all or a portion of the employee’s share of the premium.

Self-funded plans

The law authorizes employers to operate their own equivalent voluntary plans.

Miscellaneous

Includes special provisions for small businesses with fewer than 50 employees.

Allows tribes and self-employed individuals to opt in.

Job protection

Following leave and benefits, an employee is entitled to restoration to the same position held before the leave; or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment at a workplace within 20 miles of the employee’s original workplace.

What’s next?

There are many unanswered questions about this law and how it will interact with the existing Washington Family Leave Act and the federal Family and Medical Leave Act, which provide unpaid job-protected leave for many of the same reasons. We expect robust regulations to be passed before the effective date of January 1, 2020. In the meantime, for your reading pleasure we provide this link to the full text of the Washington law.

*Please be patient! We have over 2 years to implement this law. In the meantime, we are working diligently to be ready for the New York paid family leave law and the ERISA disability claims handling rules changes, both effective January 1, 2018! You can find prior posts on the New York law here and here. A primer on the new ERISA regulations is available here.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

One of the challenges of administering leaves under the Family and Medical Leave Act is dealing with issues not well addressed by the law and the regulations – and there are many. How long can an employer rely on an FMLA third opinion certificate? How does an employer deal with an employee’s fluctuating work week when it doesn’t have historical information regarding the employee’s work schedule? How late is too late for an employee to return an FMLA certification? The list goes on.

In years gone by, the Wage and Hour Division of the DOL (responsible for enforcement of the FMLA) issued opinion letters as guidance on the murky issues submitted in inquiries by employers or employees. In 2010 the Division stopped this practice and instead issued occasional “Administrator Interpretations” – broad, general interpretations of a select FMLA provision applicable to all employers or broad groups. These Administrator Interpretations were few and far between (only 2 specifically for the FMLA from 2010 through the present) and gave little more than a regurgitation of information found in the regulations themselves. As a result, in the absence of opinion letters, employers and FMLA administrators had no resource for requesting official DOL guidance on the tough and tricky FMLA issues. Oh sure, we could call our local DOL office for help, but experience has shown that you can get different answers from different offices, or even from different Wage and Hour personnel within the same office. (Who answers the phone on Tuesdays?) And, the answers are verbal, never in writing, so hard to rely upon with accuracy.

Now, the DOL has announced that it is reinstating opinion letters as assistance to employers and employees. Hurray for the DOL! As the DOL explains, “An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion.” Thus it provides an official, reliable interpretation of the FMLA and its regulations. We may not always agree with the Division’s opinion, but at least we know where the agency stands.

I can provide a recent example of the value of opinion letters. In researching a thorny issue relating to FMLA leave to care for an “adult son or daughter” and the in loco parentis relationship, I discovered two opinion letters that will assist me in my interpretation of a specific fact situation for one of our clients. There were no court opinions that helped with my issue, so I was glad to get this guidance from the Division’s library of FMLA opinion letters. I feel another blog post coming on!

The Division has established a website where users can review existing guidance (including opinion letters, Administrator Interpretations, and other materials) and submit a request for an opinion letter. As explained on the website, “The Wage and Hour Division exercises discretion in determining which requests for opinion letters will be responded to and the appropriate form of guidance to be issued in response (i.e., Administrator-signed opinion letter, non-Administrator opinion letter, Administrator Interpretation). The Wage and Hour Division processes requests for guidance as expeditiously as possible.”

Time will tell how actively the agency will resume this practice and how long it may take to receive a response.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us atping@matrixcos.com.

Many employers might be in a joint employment relationship with a business partner and not realize it. Joint employment can create or increase employer liability under the FMLA.

On January 20, 2016, the U.S. Department of Labor (DOL) released an Administrator’s Interpretation 2016-1 (AI) on the responsibilities and obligations of joint employers. The DOL concurrently issued a new Fact Sheet #28N, which focuses on joint employer responsibilities under the FMLA.

Today – June 7, 2017 – the DOL announced that it is withdrawing AI 2016-1. This is consistent with other Trump administration initiatives to pull back on governmental regulation of businesses as employers. The withdrawal does not change the existing law, but does eliminate the AI as the DOL’s broad interpretation of the law. The AI is no longer available on the DOL website.

So far the DOL has not taken action to withdraw FMLA Fact Sheet #28N. We’ll be watching! In the meantime, employers should review that Fact Sheet to gain an understanding of their possible FMLA obligations as a joint employer.

As a side note, the DOL has also withdrawn a 2015 Administrator’s Interpretation on independent contractors.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

The New York Workers’ Compensation Board has issued revised regulations interpreting and supporting the state’s Paid Family Leave law that will start providing employees with pay benefits on January 1, 2018. This revised version of the regulations, published on May 24, 2017, is still not final. The Board is accepting comments for 30 days, or until June 23, 2017.

As a reminder, the law phases in from 2018 through 2021. Job-protected leave starts at 8 weeks per 12-month period and increases to 12 weeks; pay benefits start at 50% and increase to 67% in 2021. Leave is available to bond with a new child, care for a family member with a serious health condition, and tend to matters due to the active duty military deployment of a family member. A more detailed review of the law’s provisions is available on our prior Matrix Radar blog post here.

Along with the revised proposed regulations, the Board published a summary of the 117 comments received during the public comment period from advocacy groups, individual employees, and associations representing businesses, insurance carriers, law firms, unions, and employees. Here are a few interesting issues raised by the comments and the Board’s responses:

Employee Eligibility. NY PFL requires employees to become eligible for family leave after either 26 weeks or 175 days of work, depending on their schedule. The original regulations applied the 175-day eligibility rule only to part-time employees who worked fewer than 5 days per week. Section 380-2.5 has been amended to apply the 26 week eligibility criteria to employees who work 20 or more hours per week, and the 175-day eligibility criteria to those who work less than 20 hours per week. 380-2.5(a) and (b).

Employer’s Lack of Cooperation. Some insurance carriers requested clarity around their obligations if an employer refuses to cooperation in the PFL benefits process. The Board responded that the regulations then require the carrier to communicate directly with the employee, and the employer’s lack of cooperation is not grounds for denial of benefits. 380-5.4(e).

ICD-10 Code. The proposed regulations originally required that certifications from medical providers of a family member’s serious health condition include the ICD-10 code for the diagnosed condition. Commenters identified various concerns, ranging from possible delays caused by incomplete forms, to health privacy concerns. In light of these comments, this section has been amended to remove the provision requiring that the ICD-10 code be included as part of the family member’s certification. 380-4.2(a)(3).

Employee Language Preference. The original proposed regulations required an insurance carrier or self-insured employer to make all communications with an employee in the language identified by the employee on the Request for Paid Family Leave. The Board received several comments expressing concern that complying with this requirement will be overly burdensome and prohibitively expensive. As a result, the Board has indicated that it will translate the request for paid family leave forms and instructions into seven languages (not identified), and has revised the regulation to state that insurance carriers or self-insured employers must make all reasonable efforts consistent with the principles set forth in Executive Order 26.” §380-5.4(h).

Denial of Claim. Any denial of a claim for PFL benefits must be issued within 18 days of receipt of a completed claim. The revised proposed regulations have added a section specifying that the notice to the employee must state the reason for the denial, repeat any relevant information filed in the request for PFL, and include any other information considered by the carrier in making the denial decision. 380-5.4§(a)(1).

Employer Size for Coverage. Several small employers and individuals expressed concerns about the adverse effect of paid family leave on small employers. The statute defines a covered employer as an employer with one or more employees, and this cannot be modified by regulation. Therefore, no change has been made.

Employee Contributions during Leave. The Board has revised the regulations to clarify that an employer can continue to deduct PFL contributions while an employee is receiving disability or PFL benefits. 380-7.2(b)(4).

The full text of the revised proposed regulations, a summary of all comments received, and other NY PFL information is available on the Paid Family Leave page of the Workers’ Compensation Board website: http://www.wcb.ny.gov/PFL/pfl-regs.jsp.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Last week I had the distinct pleasure of co-presenting one of the opening general sessions at the Disability Management Employer Coalition Compliance Conference with my buddy and fellow blogger, Jeff Nowak. Those of you who know Jeff and me will understand sharing the stage with him is tough duty: He’s cuter, funnier, and a better singer than me! Nonetheless, I soldiered through and together we provided updates on key FMLA cases decided by the courts in the past 12 months or so. Although there were no headline-making court decisions (think Escriba v. Foster Poultry Farms from a couple of years ago) there is still plenty to learn, and important reminders to gain, from recent FMLA cases. Here are some highlights:

Year of the Third Party Administrator. (Jeff’s title, not mine.) The past few months brought us a spate of cases dealing with an employer’s ability to require employees to provide notice of FMLA leave to both the employer and the employer’s third party administrator. For example, you can require your employees to call one number to report the absence for operational and attendance purposes, and another number (like Matrix!) to comply with and benefit from FMLA processes and protections. The key is to ensure that your employees are aware of the required two-notice process.

What employers should do: Enact a policy and distribute it to your employees spelling out the two-notice requirement, providing both numbers, and – while you’re at it – include time limits within which employees must report to each number. Some of the cases: Scales v. FedEx Ground Package Sys. (N.D. Ill. Jan. 2017); Alexander v. Kellogg USA, Inc. (6th Cir. Jan. 2017); Perry v. American Red Cross (6th Cir. 2016)

Employer’s duty to inquire for more information. The FMLA regulations provide that if an employer is on notice of an employee’s possible need for FMLA leave, the employer has the duty to ask for further information if needed to determine whether the employee’s leave request is for an FMLA-qualifying reason. 29 C.F.R. § 825.3(c); 825.303(b). This rule came up in two different contexts in recent cases.

In Reeder v. County of Wayne (E.D.Mich. Apr. 2016), employee Yasin provided a doctor’s note that identified his health conditions, stated he was under treatment, and directed that he should not work more than 8 hours per day – and thus no overtime (which was frequently required to ensure security at the county jail where he worked). The County did not provide Yasin with an FMLA certification form or a notice of rights and responsibilities. After missing many overtime shifts and receiving discipline, Yasin was terminated. The court ruled that a jury could find the information in the doctor’s note sufficient to put the County on notice that Yasin might need FMLA leave, thus giving rise to the County’s duty to inquire further if it needed more information.

EPILOGUE: The case indeed went to a jury that found the County had interfered with Yasin’s FMLA rights. He won over $187,000 in damages, $125,000 in attorneys’ fees, interest, and costs for a total in excess of $325,000.

Coutard v. Municipal Credit Union (2d Cir. Feb. 2017) reinforces the employer’s duty to inquire but this time in a situation that might surprise employers. Frantz Courtard asked for a leave of absence to care for his grandfather. MCU summarily denied the leave request, stating that the FMLA does not cover leave for grandfathers. Frantz took time off anyway due to his grandfather’s need for home care following hospitalization. Frantz was terminated for unexcused absences. Turns out, Frantz‘s grandfather had cared for him from age 4 when Frantz’s father died to age 14, providing a home, food, clothing, schooling, and other support typical of a parent – in short, a classic in loco parentis relationship. MCU argued that Frantz should have volunteered the information to establish the in loco parentis relationship. The court disagreed, holding instead that MCU had a duty to inquire whether Frantz’s grandfather qualified as ILP. Thus, Frantz’s termination constituted interference with his FMLA rights.

What employers should do: Always follow up with an employee if he or she provides information that a leave request might qualify under the FMLA, depending on additional facts. The regulations clearly state that merely “calling in sick” is not enough, but beyond that (and maybe even in that situation, depending on other facts) you should ask informally for more information to assess whether you should initiate the FMLA notice certification process. You will still be able to deny FMLA protections if the certification does not support the leave under the FMLA.

Beware the FMLA mandatory overtime rules! They can get you coming and going, as tire maker Bridgestone learned. Under Bridgestone’s overtime process, workers were not required to sign up for overtime, but if an employee did sign up and was selected for an OT shift, the employee had to work the assigned shift or be assessed an attendance violation. Employee Lucas was approved for intermittent leave to care for his son, who had asthma. Over time Lucas missed many OT shifts he had signed up for. Bridgestone applied FMLA to excuse most of the missed shifts, but ultimately Lucas exhausted his FMLA and was terminated for attendance violations.

The questions before the court included whether the OT shifts were mandatory, and whether Bridgestone had properly accounted for those shifts under the FMLA. Lucas argued the shifts were not mandatory because an employee could choose to sign up; as a result, they should not have been counted against his FMLA usage – and hence, he would not have exhausted his FMLA. Bridgestone countered that the shifts were mandatory once the employee signed up and was selected for a shift; as a result, Bridgestone argued, it was correct in deducting FMLA hours for the mandatory OT shifts Lucas missed to care for his son.

The court agreed that the shifts were mandatory due to Bridgestone’s OT sign-up, selection, and discipline process. But, Bridgestone had it only half right: The company was in compliance with the FMLA regulations when it deducted missed OT shifts from Lucas’s FMLA entitlement, but the company should also have included Lucas’s mandatory OT hours in its calculation of his “workweek” for FMLA purposes, using the variable workweek method permitted by the regulations. 29 C.F.R. § 825.205(b)(3). By failing to do so Bridgestone shorted Lucas on entitlement. Hernandez v. Bridgestone (8th Cir. Aug. 2016).

Certification from a treating specialist? Maybe yes. Good news! A court has approved an employer’s request for an initial certification from a treating specialist. Erica was a difficult employee, to say the least. Her many complaints and ultimate termination landed her employer, City of Milford, in court. Lucky us! Erica’s groundless FMLA claims yielded a court ruling that is good news for employers. Erica was a community outreach employee for the City and requested FMLA leave for severe anxiety. She provided an FMLA certification from her primary care provider, who indicated that she was under treatment with a psychiatrist. The City asked for a new certification from the treating psychiatrist, which Erica provided. She received all the leave she requested but later – lots going on in the background, folks – she was fired. She sued and claimed, among many other things, that the City’s requirement that she provide a certification from her specialist was FMLA interference. Au contraire, said the court. Under these facts (a treating specialist referenced on the provider’s certification) the employer was justified in asking for a cert from that specialist.

But there are limits to how far we can rely upon this court decision. If the initial certification does not reference treatment by a specialist, a court may not be as willing to support an employer’s request for a certification from a specialist. After all, who would that specialist be if the employee is not treating? This is a reminder of the advantages of reviewing an employee’s initial certification carefully. The DOL prototype forms have questions to identify whether the employee/patient is receiving treatment from any other provider (WH-380-E and 380-F):

Was the patient referred to other health care provider(s) for evaluation or treatment (e.g., physical therapist)? ____No ____Yes. If so, state the nature of such treatments and expected duration of treatment: ___________________________________.

If the form is blank in this regard, follow the incomplete process spelled out in the regulations. If the form is filled in and indicates no other treatment, the second/third opinion process may be appropriate because the employee’s provider has given a certification on a specialty condition not within his/her practice. Either way, the employer ends up with more precise information about the employee’s need for leave – always a good thing!

The FMLA continues to be a challenge for employers – there seems to be no end to the fact situations employers face in managing employee leaves. If you have questions about the cases above other leave management issues, please contact us for help.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Q: What do attendance, a deaf lifeguard, and an “accidental leave law” have in common?

A: They are all topics addressed by an EEOC representative at Matrix’s recent Client Advisory Board meeting.

Pierce Blue is Attorney-Advisor to EEOC Commissioner Chai Feldblum. We invited Pierce to a meeting of a cross-section of our clients to talk all things ADA – that’s the Americans with Disabilities Act, of course. Here are a few snippets of information Pierce shared with attendees:

Attendance – is it an essential function of a job? The EEOC says no, in most cases. In the EEOC’s view, an essential function is a key outcome or task. Attendance is not usually the “task” an employee needs to accomplish in the job, hence it is not an essential function. (Exceptions might include a receptionist or a security guard where physical presence is one of the expected outcomes.) Pierce noted that courts have disagreed with the EEOC on this point and have held that attendance can be an essential function. See, for example, EEOC v. Ford Motor Co. (6th Cir. 2015) (regular and predictable on-site job attendance was both an essential function of, and a prerequisite to perform other essential functions of, the employee’s job; due to her repeated absences, she was not qualified for her position).
Reduced Schedules. Ever have an employee who asked for no overtime, intermittent leave or reduced schedule as an accommodation? Is this a reasonable accommodation that an employer must consider? The EEOC say yes, in most cases. But how does this square with the EEOC’s own pronouncement that an employer does not have to lower production quality or quantity standards as an accommodation? Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA. Pierce explained the EEOC wants to see employers have the interactive discussion with the employee, address job performance expectations, and perhaps give the employee’s request a trial. As a benefit, a trial run will put the employer in a defensible position if the accommodation is later withdrawn because it simply isn’t working – the employee is not getting her work assignments done while avoiding mandatory overtime or taking intermittent leave.

Don’t act on unfounded fear and speculation. This brings us to the lesson learned from the Case of the Deaf Lifeguard. A typical initial reaction to this scenario is that, of course, a deaf person cannot be a lifeguard. Pierce discussed the case to remind employers not to act on unfounded assumptions and stereotypes. Rather, the ADA requires an individualized assessment of a disabled employee’s ability to perform the essential functions of the position.

Keith, the lifeguard, has been deaf since birth. He took and passed a lifeguard certification program and Oakland County’s water safety test and lifeguard training program. The County offered Keith a lifeguard position contingent upon the County’s usual requirement of passing a medical examination. The doctor who conducted the physical expressed concern about Keith’s ability to perform the job due to his hearing impairment, and the County withdrew the job offer. In court (yes, he sued!) Keith argued that the County failed to conduct an individualized assessment of his ability to perform the essential functions of the lifeguard position. The 6th Circuit agreed. The examining doctor had merely looked at Keith’s file and declared, “He’s deaf; he can’t be a lifeguard.” No one for the County asked Keith to demonstrate performance of the job or otherwise made an individualized assessment of his lifeguard abilities. Keith, on the other hand, had experts in deaf lifeguards and aquatic safety willing to testify that a deaf person can perform the functions of a lifeguard position. The experts explained that persons in danger exhibit visual signs of distress, and individuals deaf since birth have better peripheral vision than hearing persons. According to the court, the doctor’s “cursory medical examination is precisely the type that the ADA was designed to prohibit.” Keith v. County of Oakland (6th Cir. 2013).

Accidental leave law. Pierce shared thoughts from Acting Chair of the EEOC, Victoria Lipnic, about leave of absence as a reasonable accommodation under the ADA. Pierce explained that Acting Chair Lipnic – and others – call the ADA an “accidental leave law.” The basic intent of the law is to keep employees working, not to provide leaves of absence. In Acting Chair Lipnic’s view, Congress passed a separate law – our beloved FMLA – to address leaves of absence, while the ADA has a separate purpose: to prevent disability discrimination and help disabled individuals obtain and keep jobs. Well, we’ve come a long way, haven’t we? For more guidance on leave as an ADA accommodation, see the EEOC’s 2016 resource document, Employer-Provided Leave and the Americans with Disabilities Act.

The topics addressed by Pierce at our client meeting present significant ADA challenges for employers. Please let Matrix know if you would like to learn more about any of these topics or others relating to leaves of absence and accommodations. You can leave a message below or contact marti.cardi@matrixcos.com.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

If you’ve been in a shopping center or an airport lately then you know that the prevalence of service dogs is on the increase (I love those vests!). For employers, however, there are still many challenges in addressing an employee’s request for a service dog (or other animal) as an accommodation in the workplace. In the case of Bradley Arndt v. Ford Motor Company, Ford applied sound ADA practices to maneuver through unfamiliar territory.

Bradley Arndt was a Supervisor at Ford’s Van Dyke Transmission Plant. He suffers from PTSD following his extensive military service, which included several combat deployments. In February 2013, after about six months of tenure, he approached his then-direct supervisor indicating he was having issues with his PTSD at work, and mentioned bringing his service dog, Cadence, to work (I love that name!). While his supervisor initially expressed enthusiasm for the idea, he became concerned about potential safety and quality issues. Shortly after Bradley mentioned bringing Cadence to work, he emailed an HR representative for Ford and reported that he had missed work due to his PTSD and asked if could bring his service dog to work. The HR rep thanked him for his email and told him she would look into his request.

HR provided Bradley with a Disability Reasonable Accommodation Request form to complete, and he did so, also providing a letter of the functions his service dog could provide to him in the workplace, which he described as sensing when he is having an anxiety attack, calming him down, and keeping people away from him. Bradley indicated that just having the dog nearby “provide[d] a great deal of comfort and security… thus giving me the utmost confidence to perform my job.”

Shortly after submitting his request form, Bradley met with the physician at the plant regarding his request. The doctor asked Bradley to provide a release to facilitate communication with the VA personnel treating his PTSD and told Bradley that the doctor would be working with HR to determine whether accommodation could be made, but also noted health and safety concerns with a dog in the manufacturing facility. The very next day, Bradley withdrew his request. Apparently, the doctor mentioned the possibility of a transfer to the Dearborn location. Bradley informed the HR rep that he did not want to go to Dearborn because he understood that the city had a large population of Arabs and that seeing women ”walking around in burkas” might trigger his PTSD. He also told HR that he was withdrawing his request because he “didn’t want to be a bother.” HR told him it wasn’t a bother and that they needed to engage in the interactive process. After he insisted on withdrawing the request for accommodation to bring Cadence to work, HR told him to put the withdrawal of his request in writing, which he did on March 15, 2013.

Bradley took medical leaves for his PTSD. Upon his return from a second such leave, on February 21, 2014, he submitted a return to work note from his treating physician indicating he could return to work as of February 20, 2014 “with the presence of a service dog, Cadence.” That same day, he completed another Disability Accommodation Request Form asking for a “service dog at work.” The form invited him to specify the job functions he was having difficulty performing, as well as limitations his condition posed which interfered with his ability to perform his job. Bradely’s answers did not, however, provide that information.

Because the plant had not previously dealt with a request to bring a service dog to work, HR placed Bradley on a “no work available” or “unfit to work” status so that he could continue to receive his fully salary and benefits while Ford looked into his request. On March 4, 2014, HR and Bradley’s supervisor met with him to discuss his request. They asked Bradley to identify the aspects of his job he could not perform without his service dog. In this meeting, Bradley insisted that he could perform all of the aspects of his job and that he just needed to have his dog to “alleviate environmental factors.” After the meeting, HR wrote a letter to Bradley’s doctor asking clarifying questions, provided the doctor with a job description, and posed very specific questions: which job functions were rendered difficult for Bradley to perform due to his condition, how the requested accommodation helped him perform his job, and whether there were other accommodations that might be offered. On April 4, 2014, Bradley returned the completed information from his physician. The doctor opined that she was unaware of any job functions he couldn’t perform, though she believed that having his service dog under his desk at work might calm him so he could complete his job duties.

HR arranged a second meeting with Bradley to discuss his request to bring his service dog to work. That meeting took place on May 13, 2014. Bradley brought his dog to the meeting. Humes asked him what job functions he felt he could not perform without accommodations. Bradley insisted he had already answered the question several times, placed his Ford badge on the desk and said that if Humes could not give him an answer by the following Monday morning, he was quitting. Bradley filed a lawsuit, accusing Ford of failing to reasonably accommodate his PTSD.

Ford won this lawsuit on summary judgment. In its decision, the court emphasized that Bradley failed to show that having his service dog with him at all times in the manufacturing facility would enable him to perform his job. In addition, the court rejected Bradley’s contention that a three-month interactive process demonstrated that Ford failed to participate in good faith. In doing so, the court acknowledged that Ford had legitimate concerns about Bradley bringing his dog to work and whether doing so would enable him to perform his job and effectively calm him if his PTSD were triggered at work. Ford was able to show that, during that three-month timeframe, they were actively engaged in investigating the possibility of accommodating Bradley’s request, including asking other facilities whether and how they had successfully allowed a service animal accommodation at their plants and walking the plant floor with the safety manager to have her identify any safety or health concerns. Ford also put Bradley on a fully paid leave (which is itself a reasonable accommodation) while they were doing that important research. Ultimately, the court concluded, by quitting instead of continuing the interactive discussion, it was Bradley who was responsible for the breakdown in the interactive process. Because of this, Bradley could not show that Ford failed to engage in the interactive process nor that Ford had violated the Americans with Disabilities Act by not providing his requested accommodation to bring Cadence to work with him.

Pings for Employers:

The Arndt case provides a great outline for what employers should do when an employee requests to bring a service animal to work as an ADA accommodation:

Get information. When an employee asks for an ADA accommodation, the employer has the right to certain information, including how the employee’s condition limits his ability to perform his essential job functions and how the requested accommodation(s) is going to help him do so.

Follow the usual ADA process. A service dog is like any other accommodation in this regard – if your employee says he needs to bring his dog to work, you can and should start the interactive process to understand what job functions are impacted by his condition and how the dog will help him perform his job.

Conduct and individualized assessment. It is understandable that an employer’s first reaction to a request for a service dog as an accommodation would be to balk – but it is imperative to conduct an individualized analysis and keep an open mind in the process.

Accommodation must be effective. Like any accommodation, granting the employee the right to bring a service dog to work requires not only that it be reasonable, but that it is effective. This is where Bradley failed in communicating with Ford.

A caveat. Ford and the court seemed to focus on whether the service dog Cadence enabled Bradley to perform any specific essential functions of his position. This was a tall order. Perhaps Bradley could have made an argument that by keeping him calm, Cadence enabled him to perform his job overall by being present and functional. Another court, another time, might have found Bradley’s evidence in this regard sufficient to support a claim of failure to accommodate. Of course, Bradley still had the problem of walking out before the interactive process was complete.

Give it a try. One of the best things an employer can do in the accommodation process is to give the employee’s request a trial. In the case of a service animal, if the presence of the animal causes problems or the accommodation isn’t effective to enable the employee to perform the essential functions of the position, you have tried and you have solid evidence – not just speculation – that the accommodation isn’t effective.Then restart the interactive process to determine whether an alternate accommodation might be reasonable and effective.

Other concerns. Sometimes a service animal in the workplace can create additional problems, such as complaints from other employees with animal allergies, fear of dogs, etc. If the co-worker’s issue is also a disability, you may need to seek a compromise, such as designating restricted areas where the service animal cannot go or providing air purifiers. Also, the employer can establish ground rules – like keeping the dog on a leash, and having the employee be responsible at all times for its care and behavior.

Ask JAN! For more assistance always remember to work with the Job Accommodation Network at http://askjan.org/ . JAN is a free, not-for-profit organization that focuses on assisting employees and employers with navigating the ADA – and you can talk with a live person if you call the number on the website.

MATRIXCANHELP!

Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process. We will initiate an ADA claim for your employee, conduct the medical intake if needed, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at 1-800-866-2301 to learn more about these services.

It appears the Equal Employment Opportunity Commission has added a new focus to its enforcement efforts. In its latest Strategic Enforcement Plan, the EEOC announced that one of its national priorities is for “the Commission to address . . . issues involving hiring barriers and the ADA.” Many of the recent settlements by the EEOC highlight just how seriously the EEOC is taking this strategic priority, in particular regarding applicants who request a reasonable accommodation in the pre-employment processes. Here are a couple of examples:

EEOC Settlement on Behalf of Trucking Applicant for Failure to Accommodate

An applicant for a truck driver position with Covenant Transport sought accommodation, on the basis of his medical condition, to have a blood test instead of providing a urine sample in connection with the company’s pre-employment drug screening. The EEOC filed suit, alleging that the company initially agreed to this request for accommodation, but ultimately reneged and declined to hire him because he could not submit a urine specimen for testing.

The oddest part of the settlement is that it requires Covenant to develop a written drug testing policy (surprised they did not have one already!) and to provide 90-minute trainings annually on the policy (that’s a long time to discuss one policy!) to its recruiters and head of safety. Covenant also agreed to pay $30,000 to the applicant.

As part of its hiring process, S&B in Fort Worth, Texas, required applicants to participate in a “group interview” with prospective supervisors. During this interview, the EEOC contended that the two applicants on whose behalf it brought this lawsuit were observed to be engaging in American Sign Language to communicate with each other. They asked that the supervisors provide them with written questions. The lawsuit alleged that the supervisors initially did so, then declined to continue and told both applicants the company would not hire them.

This lawsuit cost S&B $110,000 but, as you no doubt can guess by now, the EEOC imposed additional requirements on S&B to settle. The company is also required to maintain a written log of all disability-related complaints and report semi-annually to the EEOC. In addition, managers, supervisors, and HR personnel are required to attend a training conducted by a Dallas advocacy center for deaf individuals on the use of sign interpreters in interview and employment settings.

Remember that the ADA applies to applicants as well as current employees. The prospective employer must provide reasonable accommodation(s) to applicants for known disabilities to assist them through the application process.

Train internal recruiters and interviewing personnel on the requirements of the ADA, so that they recognize and respond appropriately to a request for an accommodation during the application process.

Establish a culture of disability acceptance and recognition of each individual’s capabilities, not their disabilities.

MATRIXCANHELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

The New York Paid Family Leave act goes into effect on January 1, 2018. This law provides both job protection similar to the FMLA, and also provides a pay benefit to employees during covered leaves of absence. Now, New York Governor Cuomo has announced that the proposed regulations in support of the law have been published in the State Register and are open for public comment for 45 days. Links to the text of the proposed regulations and related materials can be found on the New York State website here.

The law phases in from 2018 through 2021. Job-protected leave starts at 8 weeks per 12-month period and increases to 12 weeks; pay benefits start at 50% and increase to 67% in 2021. Leave is available to bond with a new child, care for a family member with a serious health condition, and tend to matters due to the active duty military deployment of a family member. A more detailed review of the law’s provisions is available on our prior Matrix Radar blog post here and in the state’s announcement of the proposed regulations.

The state has also created a new helpline (844) 337-6303 and a new website to answer questions and provide more information about the paid leave program.

Part of a Trend

Three other states – California, New Jersey, and Rhode Island – also have state programs for paid family leave, and Washington, D.C., has passed such a program to go into effect in 2020 (subject to review by the U.S. House and Senate). These states and also Hawaii, New York, and Puerto Rico offer separate programs for disability insurance for an employee’s own health condition.

But that’s not all! As of February 28, the following 10 states have also introduced legislation for paid family leave: Connecticut, Hawaii, Illinois, Missouri, Oklahoma, Oregon, South Dakota, Tennessee, Texas, and Virginia (died in committee within 3 weeks of proposal – that was quick!). Some of these also include pay benefits for leave due to the employee’s own health condition. In addition, the state of Washington passed paid family leave legislation in 2007 but it never went into effect due to lack of funding. Washington has introduced new bills this year to provide that funding and implement its paid leave law.

Matrix and Reliance Standard Can Help!

At Matrix we have been waiting for this development. We will closely review the proposed regulations, inform our clients, business partners, and readers of any significant provisions, and submit comments to the state if appropriate. We’ll do the same when the regulations – as is or revised – become final.

In the meantime, Matrix’s compliance and product leaders are guiding a team with representatives from all affected functional areas in preparing to administer the job-protected leave provisions of the law effective January 1, 2018. Our sister company, Reliance Standard Life Insurance Company, has likewise assembled a team of representatives from all functional areas to design the product offering. In order to be ready by the effective date, Reliance Standard has already created system requirements and is preparing to start development.

Enforcement and legislative attention continue to increase around pregnant employees and pregnancy-related conditions in the workplace. The message to employers? Treat a pregnant employee poorly – or differently – at your peril. Rooms to Go learned this lesson recently, even though the pregnant employee’s manager seemed to be acting in the employee’s best interest.

The Case. RTG Furniture Corp. (RTG) operates a chain of Rooms to Go furniture stores and distribution centers nationwide. After being sued by the Equal Employment Opportunity Commission (EEOC), the company has agreed to pay $55,000 and provide other relief.

According to the EEOC’s complaint, the company hired Chantoni McBryde on June 1, 2015, and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was called into a meeting with the company’s regional shop manager and others and was asked to confirm that she was pregnant. The EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde. The EEOC said that McBryde was then told that because she was pregnant, she could no longer work at the facility. If true, this conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), which prohibits employers from terminating workers because they are pregnant.

As is common in settlements of EEOC lawsuits, the company agreed to other provisions in addition to providing monetary relief to McBryde. The three-year consent decree between RTG and the EEOC requires RTG to develop and implement a policy that prohibits pregnancy-based discrimination; to conduct annual pregnancy discrimination training for employees, supervisors, and managers at certain facilities; to post a notice about the lawsuit and employee rights under federal anti-discrimination laws at those same facilities; and to provide periodic reports to the EEOC. Thus, while the $55,000 judgment may seem like something your company could handle, this type of extensive oversight and training obligation is far more intrusive and onerous.

According to the EEOC, “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume. If there may be a potential health concern, it is up to the woman and her doctors to evaluate. Companies must not impose paternalistic notions on pregnant women, as doing so can result in unlawful discrimination.” EEOC Press Release 02-03-2017

Sources of Pregnancy Protections. Here are some of the state and federal laws that provide protections for pregnant workers:

The federal Pregnancy Discrimination Act, passed in 1978 as an amendment to Title VII, prohibits sex discrimination on the basis of pregnancy. Pregnant women who are able to work must be permitted to work under the same conditions and must be treated the same as non-pregnant employees. The EEOC will broadly interpret when pregnancy-related conditions are considered disabilities under ADA.

The federal Family and Medical Leave Act defines a “serious health condition” to include pregnancy and provides up to 12 weeks of leave for prenatal care and pregnancy-related conditions.

Under the Americans with Disabilities Act, a “normal pregnancy” is not a disability – but a “pregnancy-related impairment that substantially limits a major life activity” can be a disability.

State laws – as of 2016:

Virtually all states have provisions similar to the Pregnancy Discrimination Act in their civil rights laws.

Approximately 12 states have laws specifically requiring employers to grant a leave of absence for pregnancy disability.

Approximately 17 states have laws requiring accommodation of pregnancy-related conditions in the workplace – even if not a “disability.” “Common conditions of pregnancy” must be accommodated. Accommodations can include leave of absence as well as breaks, equipment, modified schedules or duties, light duty, etc.

Many more state pregnancy leave and accommodation laws have already been introduced in 2017. Watch this blog for announcements if/when they pass.

Pings for Employers

Treat pregnancy the same as other temporary disabilities – unless a law specifically requires more favorable treatment.

UPCOMING EVENT! I will be presenting at the DMEC Denver Chapter Meeting on the topic “Employers: Beware of Caregiver Protections!” Thursday February 23 at 2:30. I will address the pregnancy issues discussed above and much more.Please join me! Click on the link for more details and to sign up.

MATRIXCANHELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

We’ve all seen the headlines over the past two years: “XYZ Company Adopts Expansive Paid Parental Leave Policy.” News coverage of paid parental leave (PPL) increased tremendously in 2015-2016 over prior years, fueled by the numerous PPL implementations by big-name companies.

Key questions that arise in assessing the increase in company PPL plans include: Why now…finally? What motivates employers to adopt PPL plans? What lessons can employers learn from the trailblazers’ experiences? What’s next for PPL? We’ll do our best to answer these below.

In mid-January the Integrated Benefit Institute (IBI) hosted an event in San Jose to present the findings of its 2016 study of the tech industry’s burgeoning PPL policies. The study, “. . . And Baby Makes Three (Months Off)”, attempts to answer the above questions and more. At the event, representatives from Facebook, Intuit, and Adobe participated in a panel discussion of their companies’ PPL programs and provided their thoughts and experiences on these issues as well. (And many thanks to Facebook and Intuit for sharing their positive experiences with Matrix as their third party administrator!)

The following information is based on IBI’s report (well worth a read in its entirety) and input from the panel and other employers at the conference.

Why Now?Social and economic factors explain only so much. Yes, tech industry players have been competing fiercely for talent in recent years, but data show that the NASDAQ was booming in 2009, signaling the end of the recession. Along with this came declining unemployment rates overall and specifically in the tech industry. Yet that was not enough to set off a huge jump in PPL as an employee benefit.

Several events from 2009 forward may have created or contributed to the momentum:

In 2009, the New Jersey paid family leave program took effect. (California’s paid family leave program took effect in 2002.)

In 2012 Marissa Meyer was hired as Yahoo! CEO – while she was pregnant.

In 2013 Sheryl Sandberg, Facebook’s COO, published Lean in: Women, Work, and the Will to Lead.

The White House Summit on Working Families was held in June 2014, which brought together advocates for such issues as paid family leave, paid sick time, flexible scheduling, and equal opportunities in the workplace.

Whatever the cause, U.S. employers are embracing paid parental leave – and in some cases paid family leave – in ever greater numbers and with increasingly generous plans.

What Motivates Employers?With these events as a backdrop, IBI conducted interviews with 15 established tech companies to discover the motivations driving their adoption of paid parental leave. These fell into four broad categories:

Compete for talent – most companies have no drive to be #1 in PPL offerings, but want to be competitive by offering a reasonable amount of PPL.

Support existing corporate social values – companies want a policy that comports with other expressed corporate values, such as being “family friendly”.

Formalize and coordinate myriad and conflicting local, state, federal, and company leave policies.

De-stigmatize females in workplace – make parental leave equally available to men so women won’t be viewed as taking their jobs less seriously by taking leave.

At the conference, employers also indicated they were motivated by recent legislation requiring paid parental or paid family leave, specifically San Francisco (effective 1/1/17) and New York State (effective 1/1/18).

Key Lessons for EmployersThe IBI interviews and the conference participants provided three key lessons for employers considering adopting a paid parental or paid family leave program. Undoubtedly there are many more but here’s a start:

First, design a policy for what YOUR business is trying to accomplish. Don’t feel pressured just to do what everyone else is doing. Carefully analyze your company’s philosophies, strategies, operational needs, and other factors. Then, design a plan that will mesh with and support those factors. This is not a cookie cutter, one-size-fits-all issue.

Second, leverage your company’s FMLA and disability experiences to design and manage a program that will help maintain business performance. You probably already have a lot of experience in similar leave issues – FMLA, state leaves, disability plans, company policies, etc. Use that experience to understand your employees’ leave usage and its impact on business operations.

Finally, focus on improving the employee’s return-to-work experience after an extended leave. A new parent may have difficulty going from parental bonding leave on Sunday to full and productive engagement upon return to work on Monday. Consider easing the employee back to work with a part-time return schedule. Make sure the supervisor doesn’t have an impossible list of tasks waiting for the employee the first day back. On the other hand, ensure that the supervisor and co-workers don’t exclude the returning employee from ongoing projects; rather, design a means to bring the employee up to speed and start contributing.

What’s Next for PPL?Many questions remain as the United States tries to join the rest of the industrialized world to provide adequate paid parental and family leave. There is no “standard” PPL program at this point. Employer discussions at the IBI event revealed numerous plan variations, including:

Equal paid parental leave for all parents, with birth mothers also getting the disability/maternity leave.

Equal total leave for all parents, with the birth mother’s leave being partially funded by a disability plan.

Paid family leave that includes both bonding leave but also time off to care for other family members.

Paid parental time off ranging from 6 weeks to 12 months.

Different amounts of paid leave depending on whether the employee self-identifies as the primary or secondary caregiver.

Intermittent bonding leave – disallowed completely by some employers, while others allow intermittent leave in as small as one-day increments.

Pay provided at a percentage of the employee’s compensation or fully paid at 100%.

Coverage extended to assist with adoption proceedings and/or infertility treatments, or to care for foster children.

Other challenges and questions for the future of PPL in the United States include:

How can companies keep up with and comply with state and local laws?

Can paid family leave programs solve the issue of perceived unfairness, such as birth mothers getting more time than other new parents under most plans?

The IBI study is based on tech industry. What are the implications and likely trends for other industries?

Will today’s plan designs suit the upcoming parenting years of the Millennials, or will changes be needed?

Will the Trump presidency have any impact on the future of PPL in the United States? Trump’s campaign platform included a belated and tepid paid leave proposal – up to 6 weeks for the birth mother only, funded and administered by the existing federal unemployment program, and available only if the employer does not provide other maternity leave benefits.

What is YOUR company doing or considering in the world of paid parental and family leave? Please share with us in the comments section below.

My thanks to IBI and its Director of Research and Measurement, Brian Gifford, Ph.D, for hosting the event and sharing such valuable information with the employer community.

MATRIXCANHELP! We closely track the trends and legislation relating to paid parental and family leave, and will keep you posted on legislative, agency, and court developments through this blog and our monthly On Your Radar update.

Matrix Absence Management provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. At Matrix we monitor the many state and municipal family and sick leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Claimants under ERISA disability plans will soon have a better chance to understand and contest any denial of disability benefits. After years of litigation flowing from disability benefits denials, the U.S. Department of Labor decided it was necessary to re-examine the ERISA regulations governing the handling of disability benefits claims. Section 503 of the Employee Retirement Income Security Act (ERISA) requires every employee benefit plan to:

Provide notice in writing in understandable language explaining the specific
reasons for the denial of a claim, and

Provide an individual with an opportunity for a full and fair review of the denial.

On December 16, 2016, the DOL issued a Final Rule amending the regulations governing claims handling procedures for ERISA disability claims filed on or after January 1, 2018. The Final Rule allows plans a year to conform their claims handling procedures – and a good thing that is! The new rule and its explanatory preamble are heavy slogging indeed – measuring a full 28 pages in the Federal Register’s typical small print – and will require plans to revamp their denial procedures and communications, and likely the terms of the plans themselves.

The revised regulations themselves are a short 3 pages, but the preamble is a must-read for those deeply involved in disability claims administration. The preamble discusses the comments received by the DOL during the public comment period and the Department’s rationale for the positions it has taken in the Final Rule. Thus, it provides significant assistance in understanding the new rules and how the DOL will interpret them.

Key Changes at a GlanceHere is a summary of the major changes to the ERISA regulations, which will apply to new disability claims filed on or after January 1, 2018.

Independence and impartiality of claims adjudicators. Claims and appeals must be decidedin a manner designed to ensure independence and impartiality of the persons involved in making the benefit determination. For example, employment decisions regarding compensation, promotion, or similar matters cannot be made based upon the likelihood that an individual will support the denial of disability benefits.

A complete discussion of why the plan denied the claim and the standards applied in reaching the decision.

The basis for disagreeing with the views of health care or vocational professionals whose opinions were provided by the claimant or obtained at the behest of the plan.

The basis for disagreeing with a finding of “disability” by the Social SecurityAdministration (SSA), if applicable. A disability plan is not bound by an SSA determination, but in the past a failure to explain the plan’s reason for disagreement has been one ground for court scrutiny of the plan’s denial decision. Now that explanation will be mandatory.

The specific internal rules, guidelines, protocols, standards or other similar criteria the plan relied upon in making the adverse determination or, alternatively, a statement that such guidelines etc. do not exist.

If the denial is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, or a statement that such explanation will be provided free ofcharge upon request.

Claimant’s right to access entire claim file. A claimant must be given timely notice of his or her right to access to the entire claim file and other relevant documents and be provided the right to present evidence in support of his or her claim during the review process. For this reason, an initial adverse benefits determination must contain a statement that the claimant is entitled to receive, upon request and without charge, the documents relevant to the claim for benefits. Currently, this is only required in notices of adverse benefits determinations on appeal.

Notice of new or additional evidence or rationales before adjudication. According to the DOL, a full and fair review of an adverse determination requires that a claimant has a right to review and respond to new evidence or rationales developed by the plan during the pendency of the appeal. This allows the claimant the opportunity to fully and fairly present his or her case at the administrative appeal level, as opposed to havinga right to review such information on request only after the claim has already been denied on appeal. The evidence or rationale must be provided to the claimant as soon as possible, and sufficiently in advance of the date on which the notice of adverse benefit determination on review is required of the plan, in order to give the claimant a reasonable opportunity to address the evidence or rationale prior to that date. However, the new regulations do not extend the time deadlines for the plan’s determination; the notice of a new rationale or evidence, the claimant’s opportunity to respond, and the plan’s determination must all be accomplished within the existing time for an appeal determination (45 days from the filing of the appeal, with a possible 45-day extension).

Claimant is deemed to have exhausted administrative remedies if a plan fails
to comply with claims procedure requirements. Plans cannot prohibit a claimant from seeking court review of a claim denial based on a failure to exhaust administrative remedies under the plan if the plan failed to comply with the claims procedure requirements. The new regulations provide an exception to this rule when the violation was (i) the result of a minor error; (ii) nonprejudicial to the claimant; (iii) attributable to good cause or matters beyond the plan’s control; (iv) in the context of anongoing good-faith exchange of information; and (v) not reflective of a pattern or practice of noncompliance by the plan.

Expanded definition of “adverse benefit determination” that triggers
appeals procedures. The current ERISA regulations provide that the term ‘‘adverse benefit determination’’ includes any denial, reduction, or termination of, or a failure to provide or make full partial payment for, a benefit. Under the new rule, rescissions of coverage, including retroactive terminations due to alleged misrepresentation of fact (e.g., errors in the application for coverage) must be treated as adverse benefitdeterminations, thereby triggering the plan’s appeals procedures. This will apply whether or not, in connection with the rescission, there is an adverse effect on any particular benefit at that time.Rescissions for non-payment of premiums are not covered by this provision.

Notices and denials must be written in a “culturally and linguistically appropriate”
manner. If a disability claimant’s address is in a county where 10 percent or more of the population is literate only in the same non-English language, benefit denial notices must include a prominent statement in the relevant non-English language about the availability of language services. Such services must include assistance with filing claims and appeals in the non-English language. The plan must provide written notices in the applicable non-English language upon request.

Pings for Employers

Here’s what employers should be working on during 2017 to be ready on January 1, 2018, with the top of the list being a review of your disability benefits plans to determine if changes are needed. Most disability plan procedures will have to undergo changes to comply with the new regulations. Even if no changes arenecessary for that reason, this is a good time to consider whether your plans need revisions or updates.

Review your current claims handling procedures.This is also an opportune time to take a deep dive into your disability claims practices start to finish. Are they compliant with current existing regulations that will remain in effect in 2018? What changes do you need to make to comply with the new regulations?

Review your internal rules, guidelines, protocol, or other similar criterion that are relied upon in making adverse determinations. These will now become public documents in the case of every denial. Better polish them up and ensure that they accurately reflect your procedures. The new regulations do allow a plan to state that no such internal rules exist, but question whether that is a wise approach.

Prepare new templates for denial letters – for both initial denials and upholding a denial on appeal. A template will guide your claims examinersthrough the correct considerations and elements required by the new (and existing) regulations in the denial.

Provide training to claims examiners. Make sure your examiners are well-schooled onthe new processes – old practices may not be compliant.

Analyze the language make-up of your work force. If you will be required to provideinformation in one or more non-English languages, engage a language service for phone calls, translation of denial notices, and other claims assistance.

What is Matrix Doing to Comply with the New Regulations?Not to worry – Matrix’s disability claims handling procedures will embrace the new rules and will continue to be best in class!

We will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018. We have assembled a task force of experts in disability plans, claims handlingprocedures, ERISA, and customer service. We will undertake the steps recommended for employers above, and will review and update our claims handling software as needed.

Our practice leaders and account managers will be in touch with clients during 2017 to discuss changes to plan notifications, procedures, and more. If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

At Matrix Absence Management, we are seeing an increase in workplace accommodation requests due to mental health impairments, including modified work schedules and work-from-home arrangements. The U.S. Equal Employment Opportunity Commission has long focused on mental health impairments in the workplace and is noticing increases in mental health issues as well. On December 12, 2016, the EEOC stepped up its game with a new employee-centered resource document, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights. The document is brief – only 2 pages – and doesn’t break any new ground, but pulls together in Q&A format some basic ADA and mental health information that can be helpful to employees and employers alike.

For those readers who do not have California employees, I have 2 things to say: First, lucky you! Second, hang in there with me – I promise some non-California blog posts in the near future.

Late on Friday, November 18, the San Francisco Office of Labor Standards Enforcement (OLSE) posted draft Rules to support the Paid Parental Leave ordinance (SF PPL) effective January 1, 2017.

OLSE is taking comments on the proposed Rules until 5:00 p.m. PST Friday, December 2, 2016, and will hold a public hearing on December 2. Details and copies of the ordinance, an amendment, and the draft Rules are available on the OLSE website: http://sfgov.org/olse/paid-parental-leave-ordinance. We at Matrix will be listening for further developments.

Here are a few of the highlights from the draft Rules:

An explanation of how prior employment with a covered employer counts toward the 180-day eligibility requirement (Rule 1)

How to count employees to determine whether the employer is a “covered employer” (it can be complicated!) (Rule 2)

How to calculate an employee’s SF PPL entitlement when the employee becomes eligible during a parental leave (Rule 3)

The relationship between CA PFL and SF PPL, and what documents or information the employer can require to ascertain the employee’s CA PFL coverage (Rules 4 and 5)

SF PPL calculation for tipped employees (Rule 6)

Ability to use SF PPL intermittently, and how to calculate the employee’s intermittent pay benefit (Rule 7)

Employer appeal and hearing procedures (Rule 8)

Still unanswered:

Forms and the notice required by the ordinance are mentioned in the proposed Rules but are not yet available.

There is no explanation of the interaction or overlap in the employer’s ability to require employees to use 2 weeks of vacation pay for CA PFL and/or SF PPL purposes.

Can the employer apply accrued but unused PTO toward PPL obligation – or only time off designated as “vacation” as stated in the ordinance?

What is the statute of limitations for employee to bring a civil action against employer for PPL violations?

If an employee is continuing health and other benefits during parental leave, can the employer withhold the employee’s share of premium payments from the PPL Supplemental Compensation? How about other voluntary deductions authorized by the employee (e.g., 401(k), loan repayment, voluntary life insurance buy-up . . . )?

As a refresher, the SF PPL is available for leave taken to bond with a new child. It applies to employers with total employees in any location as follows (Covered Employers):

50 or more employees: January 1, 2017

35 or more employees: July 1, 2017

20 or more employees: January 1, 2018

Eligible employees must meet 5 eligibility requirements:

Work for a Covered Employer

Has worked for the employer for at least 180 days prior to start of leave

Works at least 8 hours per week within San Francisco

Works at least 40% of employee’s total hours within San Francisco

Is eligible for and receiving paid family leave from California for bonding

The employer’s obligation is to top off paid family leave benefits the employee is receiving from the state of California to 100% of the employee’s regular compensation, subject to a cap. The benefit is paid fully by the employer with no contribution or payroll deduction from employees.

More details about the SF PPL ordinance are available in our prior blog post here.

UPDATE (January 23, 2017)

The City of San Francisco has finalized the Paid Parental Leave ordinance, rules, and related documents. Here is the PPL website, where you can access the documents described below.

SF Paid Parental Leave Form – posted December 23, 2016. Covered Employers must provide the SF Paid Parental Leave Form to employees in San Francisco, and employees must complete the form to receive Supplemental Compensation.

Calculation Instructions– Step-by-step instructions on calculating the amount of Supplemental Compensation a Covered Employer must pay to a Covered Employee. Several different pay scenarios are included.

_________________________________________

MATRIXCANHELP! Matrix Absence Management provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. At Matrix we monitor the many state and municipal family and sick leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Plaintiff Masoud Sharif and his wife were employed by United Airlines at the Dulles Airport in Washington, D.C. He and his wife took vacation to South Africa from March 16 to April 4, 2014. Mr. Sharif, however, was scheduled to work on March 30 and 31. He was able to get a co-worker to cover his shift on the 31st, but was not able to get coverage for his shift on the 30th.

Sharif suffered from anxiety and panic attacks and had previously been approved by United to take intermittent FMLA for his condition. On March 30 he called in to report FMLA for that day. HR noticed that he had reported FMLA for his only scheduled workday during an extended vacation period and launched an investigation. Sharif was interviewed and gave conflicting explanations – at one point claiming he did not think he had to work that day, then claiming he could not locate a flight home in time for his shift, though he and his wife flew to visit a niece in Milan from March 31 until April 4.

As a result of these conflicting explanations, United notified Sharif of its intent to discharge him from employment for fraudulent use of FMLA and violating a United policy requiring truthfulness in communications. As a union employee, he was entitled to a hearing, but when the union advised him he would be unlikely to prevail, he elected to retire.

Sharif then sued United, claiming the airline fired him in retaliation for taking FMLA leave. According to the 4th Circuit, the facts developed as follows:

At 7:00 a.m. Cape Town Time (1:00 a.m. Eastern Standard Time) on March 30—the day of his scheduled shift—Sharif called United Airlines to take medical leave under the FMLA.

He had not made any advance reservations for a return flight.

The next day, Sharif and his wife flew from Cape Town to Milan, Italy, where Sharif’s niece lived.

On April 3, Sharif and his wife finally departed for Washington and arrived just in time for his wife’s next shift.

On April 23, 2014, United representatives interviewed Sharif with a union representative present. When asked about his vacation and March 30 absence, Sharif sat in silence for a period of minutes before he gave a series of inconsistent answers.

Sharif first replied that he was not scheduled to work on March 30, and when asked why he had taken FMLA leave if he did not have a shift, Sharif responded that he “d[id] not recall being out sick this day or calling out sick.”

After another pause, Sharif clarified that he began trying to return home flying standby (as airline employees often do) beginning March 29 but was unable to find any available flights.

Sharif’s story later evolved to claim he actually arrived at the airport on March 28 to begin looking for a flight, and that he and his wife obtained the additional days off in April to gather with family in Pittsburg for the Persian New Year.

As a result of his repeated unsuccessful attempts to find any means to return to Washington in time for his shift, Sharif explained that he grew anxious and was eventually seized by a panic attack which then led to his use of FMLA leave.

The district court had granted summary judgment in favor of the airline – meaning United won and the case would not go to a jury trial. The 4th Circuit agreed with the district court and affirmed summary judgment for United. In particular, the court emphasized that Sharif had to prove that United’s explanation for its determination that he had violated its policies and that his conducted warranted termination was a pretext for retaliating against him for taking leave. Sharif failed to present sufficient evidence, and quite to the contrary, the evidence supported that United had “ample reason to believe it had been lied to,” citing to the FMLA regs. “An employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s . . . provisions.” 29 C.F.R. § 825.216(d).

Pings for Employers: The FMLA offers a few tools for employers to curb suspected abuses, including prompt action to investigate to support the suspicion of improper FMLA usage. United did a number of things well, beginning with noticing there was an issue. When someone reports leave in the middle of pre-planned vacation, that is understandably cause, at a minimum, for inquiry. Also:

United kept to the facts. They did not draw conclusions, but rather, asked Sharif to provide an explanation in interviews and invited him to submit a written statement;

The airline did not take adverse employment action until they had the objective facts to support that not only did Sharif report FMLA on a day that did not appear to be for a covered reason; and

United also pursued Sharif’s violation of the Company’s policies governing dishonesty – a reason for termination independent of FMLA usage (although the dishonesty related to FMLA usage). This kind of policy should be part of every employer’s code of conduct.

MATRIXCANHELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We are experts on ways to minimize FMLA misuse and can help your company implement practices that will achieve this goal.

We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Whew! Whether you’re nursing an electoral hangover or still on an adrenaline high, it is a relief to have the election over with and return to normal life – but what is “normal” now? What are we likely to see in the next few months or years of a Donald Trump presidency, with respect to family and medical leave and related issues? What or who will SNL parody next? (OK, that’s beyond the scope of this blog, but I’ll be watching.)

Bottom line, no one knows yet. But we can make some guesses based on platforms and promises.

Trump’s Plan for Paid Maternity Leave. During his candidacy Trump proposed a plan that would provide up to six weeks of paid maternity leave. Note that term – “maternity” leave. Trump’s proposal does not include paid bonding time for fathers, paid time off due to an employee’s own health condition, or paid time to care for an employee’s ill or injured family member. Trump proposes to fund this benefit by amending the existing unemployment insurance companies are required to carry. The benefit would apply only when employers don’t offer paid maternity leave, and would be paid for by reducing fraud in the program so taxes are not raised. It is questionable whether there is enough fraud that can be identified and eliminated year after year to sustain funding of this plan.

Moreover, Trump’s support for paid leave of any kind has been tepid at best. He did not announce his plan until mid-September 2016, past the primary contests and well into the election campaign. With both houses of Congress controlled by Republicans, it is unlikely he will receive any pressure from the legislature to move forward on this issue. We’ll be watching closely.

Trend: Increasing Paid Leave. No doubt, there is a trend on many fronts in favor of paid family and medical leave.

The FAMILY Act. The Family and Medical Insurance Leave Act is pending in the U.S. House and Senate (H.R. 1439/S. 786). This Act would provide up to 12 weeks of partial wage payment during a leave of absence for reasons that dovetail with job-protected but unpaid leaves available under the federal Family and Medical Leave Act (FMLA): an employee’s or family member’s serious health condition, bonding with a new child, and certain family military-related absences.

The FAMILY Act was introduced in March 2015, has not made it out of its first committee (House Ways and Means), and will die at the end of this Congressional session (officially, January 3, 2017) – barring unlikely extraordinary action in both houses. Bills are often reintroduced in the next congressional session, so there is a good chance of more action on this issue in the 115th Congress. Support among the American public and advocates is strong. A letter of support for the FAMILY Act was submitted to members of Congress on June 29, 2016, endorsed by over 350 family-friendly organizations. Is it possible that U.S. legislators will finally see the light and take us off the list of the few countries in the world (among them, Liberia, Suriname and Papua New Guinea) that do not provide some sort of paid family or medical leave? Stay tuned.

State/municipal paid leave programs. An increasing number of state governments are requiring employers to provide paid family leave, all funded by employee payroll deductions. Here is a snapshot:

California: Effective in 2004; provides 55% income replacement for up to six weeks (in 2018 increasing to 60% or 70% depending on income level)

New Jersey: Effective in 2009; provides 67% of wages (up to $524/week) for up to 6 weeks

Rhode Island: Effective in 2014; provides a maximum of $752 per week, based on earnings, for up to 4 weeks

New York: To be effective in 2018; implementation is phased from 2018 to 2021; will ultimately provide 67% income replacement for up to 12 weeks

In addition, San Francisco has passed a paid family leave ordinance effective January 1, 2017, that requires employers with San Francisco employees to top off employees’ California paid family leave benefits to 100% of their income (subject to a cap) for 6 weeks. In contrast to the state paid family leave plans, San Francisco requires employers to pay for this supplemental compensation without any employee contribution.

Private Company Paid Leave Plans. The trend toward paid family leave is most notable in the policies adopted by many companies throughout the country. A recent analysis by the National Partnership (an organization that promotes paid leaves of absence for American workers) indicates at least 46 major U.S. companies have adopted or increased paid family leave benefits in the past two years. Most of these provide only paid parental leave, but a few – notably Adobe, Deloitte, and Discovery Communications – include paid time off for the employee’s own health condition or to care for a family member. The results of this analysis, which includes summaries of the 46 paid leave plans, can be found here.

MATRIXCANHELP! Matrix tracks state and federal legislation daily to stay on top of leave, disability, and accommodation developments. Contact us if you have questions about what’s happening in capitol buildings and courthouses around the country, or what’s on the ballot in the next cycle.

We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Employers, if you haven’t fixed this issue yet, get out from under that rock!

If an employee with a disability exhausts leave time provided by company policy or by a law such as the FMLA, you have two obligations.

First, consider even more leave as a reasonable accommodation.

Second, consider reasonable workplace accommodations to allow the employee to return to work

It’s that simple.

As announced by the EEOC on May 13, 2016, home improvement giant Lowe’s has agreed to pay $8,600,000 to affected employees as part of a consent decree entered into with the EEOC in a federal district court in California. The EEOC claims that Lowe’s violated the ADA by terminating employees with a disability after failing to provide them reason­able accommodations when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy.

And it’s not just about the money. The consent decree agreed to by Lowe’s in this case includes some very typical additional requirements, all enforceable by court order. The four-year consent decree settling the suit requires that Lowe’s:

Retain a consultant with ADA experience to review and revise company policies as appro­priate;

Implement effective training for both supervisors and staff on the ADA;

Develop a centralized tracking system for employee requests for accommoda­tion;

Maintain an accommodation log;

Post documentation in its workplaces related to the settlement; and

Submit regular reports to the EEOC verifying compliance with the decree.

Thus, Lowe’s ends up not only paying the agreed-upon amount of damages, but also incurs significant expenses (for example, attorneys’ fees) and business disruptions during the EEOC’s investigation and in complying with the terms of the consent decree for four years.

Two types of policies are on the EEOC’s radar. An employer’s obligation to provide more leave than offered by company policies or required by law has received much recent attention. Why, just this month the EEOC released a new Resource Document entitled Employer-Provided Leave and the Americans with Disabilities Act.While the Resource Document did not break any new ground (no, the EEOC still won’t say how long a leave can be before it becomes an unreasonable accommodation), it does pull together in one handy place all existing EEOC guidance on the issue, including assessment of extra leave as an undue hardship. Our blog post on the Resource Document can be found here. Meantime, the EEOC is focusing on the following:

Maximum or inflexible leave policies (sometimes referred to as “no fault” leave policies) take many different forms. A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both continuous and intermittent leave. Some employers not covered by the FMLA set lower overall caps. Others tie the maximum leave to the duration of short-term disability benefits. Any inflexible cap may result in an ADA violation because it does not allow for the interactive process and individualized consideration of whether additional leave or some other reasonable accommodation will enable the employee to return to work.

100% recovered or healed policies are those that require an employee with a disability to have no medical restrictions – that is, be “100%” healed or recovered – before returning to work. These also have huge potential to violate the ADA because the employer does not engage in the interactive process to discover whether the employee can perform essential functions with on-the-job reasonable accommodation(s).

Lots of companies got it wrong in the past. Many employers have been the subject of EEOC investigations and, ultimately, a pricey consent decree. Here are some of the bigger-ticket resolutions:

Assessing attendance points
for medically-related absences; not allowing use of intermittent
leave or extension of a leave
of absence as an ADA reasonable accommodation

Princeton HealthCare System

2014

$1.35 million

Limiting medical leave of absence to maximum of 12 weeks:

employees FMLA-eligible
terminated after 12 weeks\

employees not FMLA-eligible terminated
after short absence

Requiring certification of
100% recovery upon return
to work rather than
considering return to
work with a reasonable ADA accommodation

Dillard’s

2012

$2.0 million

Maximum-leave policy
limiting the amount of
medical leave an
employee could take

Policy requiring all
employees to disclose
personal and confidential
medical information in
order to be approved
for sick leave

Interstate Distributor Co.

2012

$4.85 million

Limiting medical leave
of absence to maximum
of 12 weeks

Requiring certification
of 100% recovery upon
return to work rather than considering return
to work with a reasonable
ADA accommodation

Verizon Communications

2011

$20 million

Failing to make
exceptions to “no fault”
attendance plans for
individuals with disabilities
as an ADA accommodation

Supervalu, Inc., Jewel Food Stores, Inc. etc.

2011

$3.2 million

Terminating employees
with disabilities who were
not 100% recovered at the
end of medical leaves of
absence rather than
considering return to
work with a reasonable
ADA accommodation

Sears, Roebuck and Co.

2009

$6.2 million

Terminating employees
following exhaustion
of workers’ compensation
leave without engaging
in the interactive
accommodation process
to consider workplace
accommodations or
leave extension as an
accommodation

Pings for employers: We provided pointers for employers in our last blog post so we won’t repeat, but given the size of the potential price tag we suggest that you go back and read again.

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our services. We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at 1-800-866-2301 to learn more about these services.